8.3​Stepparent Adoption

The unique nature of a stepparent adoption necessitates a different set of procedures for the adoption process. The following section outlines the required procedures for stepparent adoptions contained in the Adoption Code.

A stepparent adoption occurs when the custodial parent marries and his or her spouse petitions to adopt the custodial parent’s child.²³ MCL 710.23a(4); MCL 710.43(7); MCL 710.51(6).

Effective September 5, 2016, 2016 PA 143 amended MCL 710.51(6)(a) to no longer require the petitioner’s spouse (i.e. the biological parent) to have sole legal custody of the child before the other parent’s parental rights can be terminated. Thus, the “other parent” may not necessarily be a “noncustodial parent.” The court rule has not yet been amended to reflect this change, but MJI has inserted “other” in place of “noncustodial” throughout this subsection to avoid confusion.

A.​Termination of Other Parent’s Parental Rights

During the course of a stepparent adoption, the other parent’s parental rights over the child are terminated, either voluntarily or involuntarily. See MCL 710.43(7); MCL 710.51(5). The court does not terminate the custodial parent’s parental rights in a stepparent adoption. See MCL 710.43(7); MCL 710.51(5).

Termination of the other parent’s parental rights does not automatically terminate the parent’s obligation to provide support for the child; rather, a parent’s “obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law.” See MCR 3.804(C) (requiring that the parent be informed of this obligation before executing a release or consent to adoption); MCR 3.809 (requiring that the court provide oral or written notice of this obligation to a parent whose parental rights are involuntarily terminated).

1.​Other Parent Consents to Adoption

A parent “who does not have custody of the child and whose parental rights have not been terminated” may consent to a stepparent adoption.²⁴ See MCL 710.43(1); MCL 710.43(7). The court must accept the other parent’s consent for the stepparent adoption and terminate that parent’s parental rights if it finds that the consent is genuine, the parent has the authority to consent to the adoption, and it is in the adoptee’s best interests. MCL 710.51(1)(a)-(b). For a discussion on all the required steps of a consent adoption, see Section 2.6.

“If the petitioner for adoption is married to the parent having legal custody of the child and that parent has joined the petitioner in filing the petition for adoption, that parent shall not execute a consent to the adoption.” MCL 710.43(7).

2.​Involuntarily Terminating Other Parent’s Parental Rights Under MCL 710.51(6)

“If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity^[25] or is a putative father who meets the conditions in [MCL 710.39(2)²⁶], 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:^[27]

(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.” MCL 710.51(6).

“[A] parent is only entitled to petition for termination under MCL 710.51(6) if the petitioning parent, at the time of the petition, has custody of the child who is at issue according to a court order.” In re AGD, 327 Mich App 332, 353 (2019) (trial court properly denied the mother’s and stepfather’s request to terminate the parental rights of the minor child’s legal father under the stepparent adoption statute, MCL 710.51(6), where “[t]here [was] no dispute that petitioner mother, although she had custody of the child, did not have custody according to a court order when petitioners filed their petition under MCL 710.51(6) and when the trial court ruled on that petition”).²⁸

There is no incarcerated parent exception to the two-year period under MCL 710.51(6). In re Caldwell, 228 Mich App 116, 119-122 (1998) (noting “an incarcerated parent may still retain the ability to comply with the support and contact requirements of [MCL 710.51(6)]”).

After the court terminates the other parent’s parental rights, the child in a stepparent adoption does not become a ward of the court. MCL 710.51(3). See MCL 710.51(5), which provides that the court does not terminate the rights of the custodial parent who is married to the person petitioning for adoption of the custodial parent’s child.

a.​Burden of Proof

“To prove that termination of the noncustodial parent’s rights is warranted [in a stepparent adoption], a petitioner must satisfy the requirements of [MCL 710.51(6)(a) and MCL 710.51(6)(b)] by clear and convincing evidence. In applying MCL 710.51(6), courts are to look at the two-year period immediately preceding the filing of the termination petition.” In re MSL, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted).

b.​Right to Jury Trial

In a stepparent adoption, there is no right to a jury for termination of a parent’s parental rights. In re Colon, 144 Mich App 805, 816-819 (1985).

c.​Court-Appointed Counsel

The court may appoint counsel to assist a nonconsenting other parent in contesting a termination of parental rights. In re Sanchez, 422 Mich 758, 770 (1985). “In exercising such discretion, the trial court will be guided by the principle of assuring the nonconsenting parent the ability to present a case properly, measured in the particular case by factors such as the relative strength of the adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity.” Id. at 770-771.

d.​Service Requirements and Interested Parties

“The interested persons in a petition to terminate the rights of the [other] parent pursuant to MCL 710.51(6) are:

(a) the petitioner;

(b) the adoptee, if over 14 years of age;

(c) the [other] parent; and

(d) if the court knows or has reason to know the adoptee is an Indian child, the Indian child’s tribe and the Indian custodian, if any, and, if the Indian child’s parent or Indian custodian, or tribe is unknown, the Secretary of the Interior.”²⁹ MCR 3.800(B)(3).

“[A] natural, custodial parent is not a necessary party to a stepparent’s adoption petition filed pursuant to MCL 710.51(6).” In re Stowe, 162 Mich App 27, 29-30, 33-34 (1987) (trial court did not lose its jurisdiction to proceed with the termination of the other parent’s parental rights in a stepparent adoption following the custodial parent’s death when “[n]othing in the statute indicate[d] that the custodial natural parent [had to] join in the petition,” and the custodial parent’s death occurring after the stepparent adoption petition was filed but before the termination hearing was held “d[id] not prevent the action from proceeding”).

Notice of a petition to terminate the parental rights of the other parent must be personally served on that parent or his or her attorney “in the manner provided in: (a) MCR 2.107(C)(1) or [MCR 2.107(C)](2),^[30] or (b) MCR 2.105(A)(2), but service is not made for purposes of this subrule until the individual or the individual’s attorney receives the notice or petition.” MCR 3.802(A)(2). If the other parent is incarcerated, see Section 2.12 for information regarding notice to an incarcerated party.

“If service of a petition to terminate the parental rights of a parent pursuant to MCL 710.51(6) cannot be made under [MCR 3.802(A)(2)] because the whereabouts of that parent have not been ascertained after diligent inquiry, the petitioner must file proof of the efforts made to locate that parent in a statement verified under MCR 1.109(D)(3).^[31] If the court finds, on reviewing the statement, that service cannot be made because the whereabouts of the person have not been determined after reasonable efforts, the court may direct any manner of substituted service of the notice of hearing, including service by publication.”³² MCR 3.802(C).

Note: The affidavit or declaration may be verified by a party’s oath or affirmation, someone that has knowledge of the facts, or a signed and dated declaration (not applicable to affidavits) indicating “‘I declare under the penalties of perjury that this __________ has been examined by me and that its contents are true to the best of my information, knowledge, and belief.’ . . . .” MCR 1.109(D)(3).

e.​Continuation of Other Parent’s Support Obligation

i.​   Identity/Whereabouts Known

“If the parental rights of a parent whose identity and whereabouts are known are involuntarily terminated, the court shall notify the parent, either orally or in a writing, that the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law.” MCR 3.809(A). “Failure to provide required notice under [MCR 3.809] does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.” MCR 3.809(C).

ii.​   Identity Known/Whereabouts Unknown

If a parent whose identity is known but whereabouts are unknown has his or her parental rights involuntarily terminated, the court must notify the parent orally, in a writing, or through a notice of hearing provided under MCR 3.802(C) “that the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law.” MCR 3.809(A)-(B). “Failure to provide required notice under [MCR 3.809] does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent.” MCR 3.809(C).

f.​Involuntary Termination Requirements in Stepparent Adoptions

Because MCL 710.51(6) permits, but does not require, the termination of a parent’s parental rights, a court may exercise its discretion, including considering best interest factors, when ruling on a termination petition. In re Hill, 221 Mich App 683, 696 (1997).

If the court denies the termination petition, the court must indicate the reasons for the denial on the record or in writing. MCL 710.63.

i.​What Constitutes “Regular” Support For Purposes of Stepparent Adoptions

When evaluating whether a parent has provided “regular” support for a child during the two-year period preceding the termination petition, the court may properly consider a parent’s consistent provision of health insurance. In re MSL, ___ Mich App ___, ___ (2024). In MSL, the Court of Appeals held that

“making healthcare insurance available for a child plainly constitutes an act in which ‘support’ is provided to the child for purposes of MCL 710.51(6)(a). This is true regardless whether the custodial parent utilizes the support or insurance for the benefit of the child and regardless of the circumstances under which the noncustodial parent acquired the healthcare insurance in the first place. MCL 710.51(6)(a) simply does not delineate, describe, or limit the form of the ‘support’ that must be provided to satisfy the provision.” MSL, ___ Mich App at ___.

“[The MSL Court] additionally rule[d] that because the healthcare insurance was available to [the child] for the entire two-year lookback period, [the noncustodial parent] provided ‘regular’ support.” Id. at ___. 

ii.​What Constitutes “Substantial” Support and Ability to Pay For Purposes of Stepparent Adoptions

“The plain and unambiguous language of MCL 710.51(6)(a) reflects that the Legislature contemplated two broad settings with respect to support, one in which there is no underlying support order or an order does exist but provided for either ‘$0.00’ in support or reserved on the issue of support, and the second in which there exists an underlying support order that sets support in any amount above zero.” In re MSL, ___ Mich App ___, ___ (2024). In the first of those two situations where there is no support order, support is reserved, or support is set at zero, “MCL 710.51(6)(a) requires contemplation of a parent’s ability to provide support” which “entail[s] consideration of the noncustodial parent’s income, expenses, and general financial status and situation.” Id. at ___ (noting that the trial court erred by not evaluating the noncustodial parent’s ability to pay when it ruled as a matter of law that providing healthcare insurance for the child through his ongoing military benefits was “substantial” support). “MCL 710.51(6)(a) effectively mandates an analysis in which the ‘ability to support’ a child sets the parameters of what constitutes ‘regular and substantial support.’” MSL, ___ Mich App at ___.

Conversely, when there is a child support order for a monthly sum greater than zero, the petitioner does not have to prove that the other parent had the ability to pay court-ordered child support because the “ability to pay is already factored into a child support order, and it would be redundant to require a petitioner [in a stepparent adoption] under the Adoption Code[, MCL 710.51(6)(a),] to prove the natural parent’s ability to pay as well as that parent’s noncompliance with a support order.” In re Colon, 144 Mich App 805, 812 (1985). “In cases where a child support order has been entered, MCL 710.51(6)(a) may be satisfied by a showing that the natural parent has ‘failed to substantially comply with the [support] order, for a period of 2 years or more before the filing of the petition.’” In re Colon, 144 Mich App at 812, quoting MCL 710.51(6)(a) (alteration in original). But see In re Kaiser, 222 Mich App 619, 621 (1997) (“[t]he adoption statute focuses on ‘ability to pay,’ and not merely on income as narrowly defined in the income-withholding statutes”; accordingly, while the “respondent’s receipt of a legal settlement, rental income, and money from her parents [could] not constitute ‘income[ under MCL 552.602],’ those receipts, combined with the wages she earned at various jobs, nevertheless show[ed] an ability to contribute to her children’s support”); In re Martyn, 161 Mich App 474, 480 (1987) (stating that the trial court has discretion to consider or disregard reasons for noncompliance with a support order).

Substantial compliance with child support order. “Substantially comply” is not defined in the statutes governing stepparent adoptions. In re NRC, 346 Mich App 54, 60, 61 (2023). To determine whether a parent who has been ordered to pay child support has substantially complied with the order for purposes of MCL 710.51(6)(a), required an analysis of the dictionary definitions of “substantial” and “comply.” Id. at 60. “[U]nder MCL 710.51(6)(a), a parent substantially complies with a child support order when they have made a considerable quantity of the payments required by the order.” In re NRC, 346 Mich App at 61. In NRC, the trial court did not err by granting the motion for directed verdict in favor of the parent required to pay child support. Id. at 63. The parent obligated to pay support in NRC “was not absolutely compliant with the order of support” and payments he made “were often untimely, and he did not always pay his arrearage amount,” but the Court noted that MCL 710.51(6)(a) “does not require absolute compliance . . . .” In re NRC, 346 Mich App at 63. In NRC, evidence showed that the parent ordered to pay child support made many of the payments ordered, frequently made lump sum payments to catch up with any arrearages, and only owed $146 at the time the petition to terminate his parental rights was filed. Id. at 63. According to the Court, “[t]his small arrearage in relation to the thousands of dollars in child support [the parent] paid in the preceding two years is insufficient to show [the parent] failed to substantially comply with his child support obligation.” Id. at 63.

iii.​Lack of Contact With Child For Purposes of Stepparent Adoptions

Custodial parent refusing to allow contact with child. The custodial parent cannot refuse the other parent’s contact with his or her child and then use that lack of contact in support of a petition for stepparent adoption. In re ALZ, 247 Mich App 264, 273-277 (2001) (petitioner failed to prove by clear and convincing evidence that the putative father had the ability to contact, visit, or communicate with the child for two years preceding filing of a petition for stepparent adoption where the mother refused visitation, despite the putative father’s written requests, and the putative father had no legal right to visit his child until paternity was established). But see In re SMNE, 264 Mich App 49, 51 (2001) (other parent failed to show she was prevented from having regular and substantial contact with her child when she failed to seek the court’s assistance in enforcing the visitation rights to which she was entitled under a divorce judgment).

Relying on court order. The other parent could not rely on a court order denying visitation to prove he was unable to contact his child for purposes of avoiding termination of his parental rights under a stepparent adoption when he never requested visitation and did nothing to show that visitation was in his child’s best interests. In re Simon, 171 Mich App 443, 449 (1988). But see In re Kaiser, 222 Mich App 619, 623-629 (1997) (reversing the trial court’s termination order where the other parent was prevented from seeing her children by a court order that required she first receive a psychological evaluation and at the time the petition for stepparent adoption was filed, the mother was attending court-ordered counseling).

“Substantial failure” standard. The other parent who made two visits and one phone call to his child within a two-year period, and who did not visit his child once during the last 20 months of the two-year period, substantially failed to visit, contact, or communicate with the child for purposes of MCL 710.51(6)(b). In re Martyn, 161 Mich App 474, 482 (1987). The Court “express[ed] some doubt that the phrase [‘substantially failed’] can be reduced to a specific number of visits within two years.” Id. However, the Court “would, for instance, be less likely to consider a specific number of visits late in the two-year period to be ‘substantial failure.’ [The Court] would also be less likely to consider a specific number of visits ‘substantial failure’ if they required the respondent to overcome significant legal, physical or geographic obstacles. Id.

B.​Identifying and Nonidentifying Information

Although the compilation of information does not apply to stepparent adoptions, the release of identifying and nonidentifying information does. MCL 710.27(6); MCL 710.68(17). For a discussion on the compilation of identifying and nonidentifying information, see Section 9.2, and for a discussion on releasing the identifying and nonidentifying information, see Sections 9.7-9.8.

C.​Grandparenting Time

A brief discussion on grandparenting time as it relates to stepparent adoptions is contained in this subsection. For additional information on grandparenting time in general, including the required procedures, see Michigan’s grandparenting time statute, MCL 722.27b.

The Adoption Code, MCL 710.60(3), “does not prohibit the filing of an action or entry of an order for grandparenting time as provided in . . . MCL 722.27b.” Under MCL 722.27b, “[a] child’s grandparent may seek a grandparenting time order” if one or more of the circumstances outlined in MCL 722.27b(1) are met.

“Except as otherwise provided in [MCL 722.27b], adoption of a child or placement of a child for adoption under the Michigan adoption code, . . . MCL 710.21 to [MCL] 710.70, terminates the right of a grandparent to commence an action for grandparenting time with that child. Adoption of a child by a stepparent under the Michigan adoption code, . . . MCL 710.21 to [MCL] 710.70, does not terminate the right of the parent of a deceased parent of the child to commence an action for grandparenting time with that child.” MCL 722.27b(13). Moreover, MCL 722.27b(5) (requiring the court to dismiss a request for grandparenting time if 2 fit parents sign an affidavit in opposition of an order for grandparenting time) “does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, . . MCL 710.21 to [MCL] 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.”

Note: “A court shall not permit a parent of a father who has never been married to the child’s mother to seek an order for grandparenting time under this section unless the father has completed an acknowledgment of parentage under the acknowledgment of parentage act, . . . MCL 722.1001 to [MCL] 722.1013, an order of filiation has been entered under the paternity act, . . . MCL 722.711 to [MCL] 722.730, or the father has been determined to be the father by a court of competent jurisdiction. The court shall not permit the parent of a putative father to seek an order for grandparenting time unless the putative father has provided substantial and regular support or care in accordance with the putative father's ability to provide the support or care.” MCL 722.27b(2). For a discussion on establishing paternity, see Chapter 3.

“A grandparenting time order entered under [MCL 722.27b] does not create parental rights in the individual or individuals to whom grandparenting time rights are granted. The entry of a grandparenting time order [under MCL 722.27b] does not prevent a court of competent jurisdiction from acting upon the custody of the child, the parental rights of the child, or the adoption of the child.” MCL 722.27b(10).

D.​Motion for Summary Disposition on Parental Rights Termination Proceedings in Adoption Cases

Petitions to terminate parental rights in conjunction with an adoption proceeding are governed by the court rules on adoption, MCR 3.800 et seq., rather than the court rules on proceedings involving juveniles, MCR 3.900 et seq. See In re MSL, ___ Mich App ___, ___ n 11 (2024). Thus, although motions for summary disposition are generally disallowed in parental-termination cases, they are not barred by MCR 3.800 et seq., and MCR 3.800(B)(3) specifically references actions under MCL 710.51(6). MSL, ___ Mich App at ___. See also MCR 3.901(A)(1) and MCR 3.901(A)(2); In re PAP, 247 Mich App 148, 153 (2001).