step parent adoptionMany parents choose to remarry after their divorce, or after having a child. In some cases, they want to establish a legal relationship with their child and their new spouse. To do this, some step-parents choose to step into the shoes of the absent parent through a step-parent adoption.

It is important to note that the rights and responsibilities created through a step-parent adoption survive a divorce from the birth parent. Once a step-parent adoption has been completed, the adoptive parent is indistinguishable from a birth parent in terms of their rights and responsibilities.

Perhaps the most significant aspect of a step-parent adoption is the role of the non-custodial parent. In order to complete a step-parent adoption the child’s non-custodial parent must consent, have had their parental rights terminated, or be found by the court to have abandoned the child. When one of these conditions is satisfied, the non-custodial parent has no further responsibilities to the child, including the payment of child support. The only aspect of the legal relationship between the non-custodial parent and the child that is preserved is the child’s status as a potential heir of the non-custodial parent.

If the child’s non-custodial birth parent is willing to voluntarily surrender their parental rights and consent to the adoption, the step-parent adoption can proceed without a court determining that the non-custodial parent has abandoned the child. However, if the non-custodial birth parent is not willing to surrender his or her rights, the court must intervene. The petitioner will need to collect evidence to present to the family court judge in support of his or her case.

If the child’s non-custodial parent is not willing to voluntarily surrender their parental rights, the court must find that the non-custodial parent had the ability to support the minor child and has failed to do so for two or more years and that the non-custodial parent had the ability to maintain a relationship with the minor child and has failed to do so for two or more years. The person petitioning to adopt the child can allege this in their petition for adoption, and must attach an additional form swearing to the truth of that allegation.

In a landmark case for step-parent adoption the Michigan Supreme Court upheld a Court of Appeals ruling that required the custodial parent to have sole legal custody before a petition for step-parent adoption can be filed. For details on this decision, click on our blog post detailing this important adoption case.  Because this case was controversial, legislation has been proposed to eliminate what many characterize as an onerous requirement for any petitioner of step-parent adoption.

The final requirement for a successful step-parent adoption is the consent of the child. If the would-be adoptee is 14 or older then they must consent to the step-parent adoption. As with many things, this is accomplished through the use of a government issued form, available from the State Court Administrator’s website.

Clarkston Legal