Step-Parent Adoption When A Parent Is Incarcerated: Part One

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Part 1: Support

The scenario is one that is familiar to many people: Woman has a child. Father of the child is inactive, rarely visits, calls, or otherwise participates in the child’s life, never pays support and then goes to jail. Woman marries. Child is loved, cared for, nurtured, and supported by step-father. Step-father wants to adopt the child. (This scenario also happens to men who marry and have an active step-mother but for ease of reading, the first scenario will be utilized.)

Step-parent adoptions are regular occurrences in Michigan. MCL 710.51, the statute directing the requirements to terminate a non-active parent to allow a step-parent adoption, is fairly straight forward: The person who wants to adopt must prove by clear and convincing evidence:

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 substantially complied with that order for a period of 2 years or more before the filing of the petition. AND

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 filing the petition.

When a step-parent adoption is contemplated, the idea of whether a parent has the ability to support a child has been heavily litigated and generally comes down to whether the judge thinks the parent had such an ability, based on the evidence. See In re Rose, 174 Mich App 85, 435 NW2d461 rev’d, 432 Mich 934, 442 NW2d 634 (1989). Failing to follow a support order is generally easily established with testimony from the Friend of the Court regarding support arrears. However, in In the Matter of GOC, unpublished opinion of the Court of Appeals, Docket number 305328, decided January 24, 2012, the Court of Appeals made proving a person failed to comport with the support order more challenging. More importantly, Friend of the Court policies and procedures are making this impossible to prove.

In the Mecosta County Probate Court, a case began with a Mother who was on assistance when the child was born and as a result, the prosecutor’s office represented her in a petition for child support. Support was ordered, but never paid. Father was incarcerated when the child was an infant. He was in and out of jail for a few years, failing to pay support for a majority of the time. Eventually, Father was sentenced to prison for a period of years. As a result of his incarceration, the Friend of the Court scheduled a hearing regarding child support and, with no testimony, set support at $0, stating that his incarceration made him unable to pay. The order also required Father to pay his arrearage at 3% each month. Father paid nothing on his arrearage and sent no money or other items to support the child.

Mother remarried and eventually, she and her Husband filed a petition to allow the child’s step-Father adopt the child. At the hearing to terminate Father’s parental rights, the Friend of the Court testified that the 3% language was standard and not enforced. Father’s rights were not terminated because Father had complied with the court order, which ordered him to pay $0. The Court of Appeals affirmed and said Father could not be responsible for paying his arrears if it was not enforced by the Friend of the Court. Bottom line, Father was allowed to not support his child by the Friend of the Court so long as he was incarcerated because of the policy and procedures utilized by the court.

As unjust as this result is, it is now binding case law and practitioners and individuals need to be prepared to face this battle. Here are a few tips to make an attempt more successful:

1) Plan ahead. If step-parent adoption is contemplated, see an attorney immediately to understand what needs to be shown and what your particular judge will expect.

2) Be an active participant in an FOC hearing. The Friend of the Court will schedule a hearing to change support to $0. At the hearing, tell the court you want to ask questions, and then ask questions to find out if there is some income, perhaps through jail employment. If there is no income, ask the court to hold support in abeyance, rather than set support at $0 because that allows the court to later evaluate the ability to pay.

3) File a motion to modify support. File motions requesting support and take the opportunity for a support review when offered to establish an ability to pay. Many people who are incarcerated for a long time are able to get jobs and earn some amount of money, even during incarceration.

4) File a motion to enforce the support order. Support orders contain language regarding payment of medical expenses, paying arrearage, and the like. Even if no support is ordered, you can submit medical bills and seek to enforce other portions of the order, even if the Friend of the Court will not.

5) Attempt to negotiate. Some parents will willingly release parental rights if given the opportunity, don’t be afraid to ask.