Many family law practitioners were shocked when, in the case of In re AJR, the Court of Appeals construed the provisions of MCL 710.51(6) to mean that a stepparent adoption could not occur when the parents of the minor child at issue shared joint legal custody. This holding (affirmed by the Michigan Supreme Court on June 25, 2014), became a complete bar to stepparent adoptions in situations where parents share joint legal custody. Because joint legal custody is routinely granted by courts — even in situations where the non custodial parent is not involved the child — this holding added a new step to the adoption process by requiring that a parent with joint legal custody to petition the court for sole legal custody. As practitioners know, the threshold for changing custody is not an easy one to clear. The decision in AJR thus made it significantly difficult for anyone to obtain a stepparent adoption. This changed in September 2016 when the Legislature amended the statute.
The statute now reads:
(6) If the parents of a child are divorced, or if the parents are unmarried but 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 if both of the following occur:
- (a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. A child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered.
- (b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.
The key change was to substitute “a” for “the” in the first sentence. That was the entire issue in AJR.
In other words, a parent whose spouse wishes to petition the court to adopt the child does not need to obtain sole legal custody. The bottom line: it will be easier for stepparents to adopt the children of their spouses, provided that the other statutory grounds are satisfied. The Legislative changes essentially returned the stepparent adoption process to what it had been pre-AJR.