Divorce can be messy. When a co-parent disappears after a high-conflict separation, the last thing you want to do is remind him or her of the legal right to be in your life or the life of you child. Wouldn’t it just be easier to do a step-parent or relative adoption and cut ties altogether? Why does he or she even need to know at all? It turns out, there are important legal reasons why your ex needs to know about your adoption.
Let’s be clear, this post deals with a stepparent or relative adoption of your biological child. It does not apply if you are adopting another person’s child (even your new spouse’s children). If you are the petitioner (the one getting new parental rights) your ex doesn’t need to be involved. If someone else is getting parental rights to your child, you, the adoption agency, or the court will be required to give your former partner notice.
Every Adoption Involves Terminating Parental Rights
The reason your ex gets to know about your stepparent adoption is because his or her parental rights are on the line. Every Michigan adoption — stepparent, relative, or agency — involves the termination of one or both parents’ parental rights. Let’s break this down.
Michigan law tries, to the extent possible, to make sure each child has the support of two parents. When a child is born, the mother who gave birth and the person she is married to are assumed to be the parents of that child. Their names go on the birth certificate, and they get legal parental rights. If a mother is not married, she and the person she believes to be the biological father may sign an Affidavit of Paternity establishing his legal rights to the child.
When it comes time to adopt, the family court terminates the parental rights of the parent to be replaced and gives those same rights to the petitioner. To do this the court must find that the parent whose rights are terminated:
- consents (agrees) to the transfer of rights
- knew about the adoption proceedings and chose not to object
- abandoned the child, meaning that the parent hasn’t had any meaningful contact and has failed to provide support for the minor child for the last 2 years immediately before the adoption petition is filed
In other words, even if the parent hasn’t been active in the child’s life for years, the petitioners in the adoption case must still give that parent warning his or her rights may be terminated so he or she has the opportunity to object. That objection doesn’t automatically destroy the chances of adoption, but it does mean that you, and your adoption attorney will have to work harder to prove termination is appropriate.
What If Your Ex Never Knew About the Child?
Biology says that every child has two biological parents. But reality shows that a child’s father isn’t necessarily involved, or even known. So if the father isn’t known, do the adoption petitioners still need to send out notices?
To answer that question, let’s look at a recent published Michigan Court of Appeals opinion In re Miller Minors. (In Michigan, adoption cases are always connected to the child’s name.) In that case, the mother of infant twins gave the children up for adoption under the Safe Delivery of Newborns Law, which encourages parents of unintended children to turn them over to hospitals and other authorities instead of simply abandoning them. The children were placed with prospective adoptive parents. When it came time for the adoption, the agency asked the Vital Records Office to issue birth certificates, but they were held up by an “unresolved paternity issue”. Once the office determined that the mother was married, it issued birth certificates naming the mother’s husband as the father of the twins.
The question for the court was whether the adoption agency was required to notify the mother’s husband to go through the adoption. The court said yes. Even though the husband may not have even known he was a father before the adoption process started, the law still demanded that he have an opportunity to be involved in the case.
What if there was no Second Legal Parent?
Unmarried mothers have the choice of whether to name an intended legal father on a birth certificate using an Affidavit of Paternity. If she refuses to sign that form, a child will not have a second legal parent. The biological father has the ability to start a Paternity suit to establish those rights, but what if he never does?
If there is only one known parent (usually the mother), the adoption services office, or adoption agency, is required to take all reasonable steps to identify “putative” or potential fathers. This includes asking the child’s mother the identity of all sexual partners during the time the child could have been conceived and completing a search of the State’s database for a “notice of intent to claim paternity”. Filing this notice allows a father to assert his paternity rights without the mother’s consent, unless the mother contests paternity in court.
If a putative father is found, the adoption court will order DNA testing to determine if there is a biological relationship between father and child. If their is, the newly established legal father has the right to contest the adoption just like any other parent.
Whether you were married or not, Michigan law protects your ex’s right to know about your adoption. Whether you are uniting a blended family or consenting to placement with an adoptive family, the law requires you to give a parent, even a putative father, notice and an opportunity to object. If you don’t, the adoption could be set aside later on, and you could be found to have lied to the court.
Lisa J. Schmidt is an adoption attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families with stepparent adoptions and parental consents. If you need help completing your adoption, contact Schmidt & Long for a consultation.