Previously, I blogged about the following scenario: A 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. In my previous blog, I discussed the extremely unjust situation where a parent is incarcerated and, as a result, his/her child support obligation is automatically set to $0. The parent is then in compliance with the child support order and therefore, they are able to block an adoption, despite their lack of involvement or support, based on the interpretation of the existing statute.
As of September 5, 2016, the statute changed. MCL 710.51 amended, now states that a step-parent adoption may be sought if a parent fails 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.” (emphasis added). The change in the statute has changed the ability to seek step-parent adoption exponentially. Now a parent can seek a step- parent adoption even when support has been set to zero, whether automatically or by agreement.
Having this language in the statute does not negate the obligation by the petitioning parents to establish that the inactive parent has the ability to provide support. How would a person show that an incarcerated parent has the ability to support the child? Often individuals who are incarcerated, especially those incarcerated for a very long period of time, are given jobs. Although the jobs pay very little, the court’s expectation is more about consistency than amount. If an inmate earns $10 per month and send $1 to his child’s other parent each month, that at least shows effort and the understanding that a child needs support. Commissary records (items inmates buy while incarcerated) are also used. Often inmates have an outside source of funds. If he is able to buy $50 worth of commissary on a monthly basis, then he is able to send some money to pay to support his child. If the parent is incarcerated for a shorter duration, focus on the time he was not incarcerated.
New scenario: Woman has a child. Father of the child is inactive, rarely visits, calls, or otherwise participates in the child’s life. Occasionally, Father has a moment of clarity, gets a new girlfriend, or otherwise, and decides that he wants to see the child and that he wants parenting time. Typically, there are threats to take the matter to the Friend of the Court. Woman has seen this before and it is not likely to last long. Prior to In the Matter of GOC case (See Step-Parent Adoption, part 1), I regularly advised people that if money talked, let it, meaning that if he was happy not seeing the child so long as there was no support in place, one could offer to drop support to zero if he did not insist on standard parenting time. After In the Matter of GOC, I warned people that taking such a course could later preclude them from pursuing step-parent adoption. For the emotional and physical safety of their children, most parents still chose to forego support in exchange for some control over when the other parent saw the child. The statute requires that the parent have the ability to contact the child, so the custodial parent could not prevent the other parent from having visitation at all, but could insist that it be supervised. Additionally, there is a presumption that a parent can always go to the Friend of the Court and demand a reasonable parenting time schedule. The court is not going to accept an argument by the inactive parent that he/she could not go to court because it would result in the requirement to pay support if specific parenting is requested.
Many changes have occurred in recent years regarding this matter. Therefore, my advice to those interest in a step-parent adoption is:
- Plan ahead. If step-parent adoption is contemplated, consult with an attorney immediately to understand what needs to be shown and what your particular judge will expect.
- Agree to $0 support if the other parent is willing to let you have discretion as it relates to parenting time.
- Keep good records as to all contacts and communication.
- Attempt to negotiate. Some parents will willingly release parental rights if given the opportunity, so don’t be afraid to ask.