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.
Part 2: Contact
Various cases have established that there is no exception for incarcerated parents as it relates to contact with the minor child. Basically, the court has said that being in jail is not an excuse for not contacting your child. An incarcerated parent can write letters, send cards, or take other appropriate actions to maintain contact with the child. Now, prisoners may even have the opportunity to call the child using calling cards or the like. An incarcerated parent can file a request with the Friend of the Court for specific times for calling or other specific methods of contact. It is very unlikely that any court is going to authorize visitation in jail. The contact has to be substantial. A card at Christmas and on the child’s birthday is not going to be considered substantial, but a letter once a month could be.
Being in jail is no excuse to not have contact with your client, AND it is no excuse to not let the father of your child have contact. The statute specifically provides that the other parent must have the “ability to contact the child.” If a parent rejects or returns letters or otherwise takes active steps to ensure that the child does not have contact with the incarcerated parent, the step-parent adoption will not be granted. Most incarcerated parents will argue that they did not have the ability to contact the child because Mother moved and changed her telephone number. They will often argue that their extended family was denied access to the child and that extended family was acting as an extension of the Father.
Whether an incarcerated parent has failed to contact, communicate, or visit is a question of fact, so what it really boils down to is: what does the court think is substantial and who does the court believe? What should you do if you want a step-parent adoption?
1) ALWAYS keep your address and telephone number up to date with the Friend of the Court. The incarcerated parent then has access to the information and you can have someone from the Friend of the Court testify as to whether he sought out the information.
2) NEVER return letters gifts or other items from the incarcerated parent or extended family. Even if the letter or card is addressed to you as a parent, do not return it, and keep it as possible evidence in court.
3) Keep good records. Keep every piece of mail or item sent (if it is a gift for the child take a picture). Write down the date anything was received and the date and times of any telephone calls.
4) Notify the Friend of the Court regarding missed parenting time. If a parent has parenting time on alternating weekends before incarceration, notify the Friend of the Court when parenting time is missed.
5) Be cautious about visits with extended family. Only you as a parent can decide if it is a good idea to continue or begin a relationship with extended family. Extended family can facilitate phone calls and contact and, depending on the extent of the contact, could prevent a court from allowing the adoption.