If stepparent adoptions are part of your practice, you’ve probably heard about In re AJR. AJR’s mother had sole physical custody but shared legal custody with AJR’s father. AJR’s mother and stepfather tried to terminate AJR’s father’s rights under the stepparent adoption statute, MCL 710.51(6), so the stepfather could adopt AJR. The trial court terminated parental rights, but the Court of Appeals reversed, holding that the statute couldn’t be used when the parents share joint custody.
To terminate parental rights under MCL 710.51(6), the spouse of “the parent having legal custody of the child” must petition to adopt the child. The AJR court construed this phrase as limiting the statute to cases where only one parent has legal custody, as defined under the child custody act. This new interpretation surprised many practitioners, so I asked ICLE contributor John Mills what all the fuss was about. He explained that some practitioners argue legal custody does not mean the same thing under the adoption code as it does under the child custody act. These practitioners point out that the provisions addressing legal custody in the child custody act were enacted well after the adoption code. They also note that in other provisions of the adoption code, legal custody means a legal right to physical custody, which AJR’s mother had. The Court of Appeals denied a motion for reconsideration that raised these arguments, but an appeal to the Michigan Supreme Court is anticipated. So John doesn’t think AJR is the last word on this issue.
In the meantime, some attorneys are advocating legislative action. In her blog, ICLE contributor Jeanne Hannah argues “AJR cries out for remedial legislative amendment.” Jeanne thinks that the stepparent adoption statute should apply regardless of whether the parties share joint legal custody. She notes that the statute has been interpreted this way for decades and that this interpretation best promotes the adoption code’s legislative purpose of “permanency, stability and security for children.” You can read more about Jeanne’s position here.
For further discussion on the impact of AJR, see Michigan Family Law §§ 21.44 , 22.5, and 22.13.