Step-Parent Adoption: Avoid These Common Mistakes Made by Applicants and Judges
Step-Parent Adoptions are not all the same. Before we start an indepth conversation, we need to discuss when a parent is “Putative”, or assumed to be the child’s parent, versus when there is an established parent.
- Putative parent. A putative parent is a parent identified by a mother, on the birth certificate, or has an affidavit of parentage, but not established through legal process as a parent or married at the time of birth of the minor child. Mistakes are common when the potential biological father is “Putative” but not the Legal Parent. A common mistake made by Judges is to treat the putative father as if he has some of the rights only granted to legal parents.
- What is the difference? When a child is born out of wedlock, the mother is automatically a legal parent of the child. The biological father, however, is not automatically a legal parent. The mother may name a man as the father, in which case he is considered the Putative parent, but not the legal father unless and until he files an Acknowledgment of Paternity with the court (affidavit of parentage), or Paternity is established through court proceedings. Married or otherwise Legal fathers have constitutional rights of parenting which have been granted to them by law because of their status of legal fatherhood. Putative fathers do not have the same rights. Even a putative father who has supported the child’s mother during her pregnancy and has supported or developed a relationship with the child does not have the same rights as a legal father. Michigan Law under MCL 710.36 differentiates between putative fathers who have no involvement or relationship with the child and those who have at least some level of involvement. However, it is critical to note that this involvement does not legally establish paternity and therefore does not grant them the same legal, constitutional rights as a legal father.
Easy Mistakes courts make in step-parent adoption:
If the putative father attends the Hearing for a Step-Parent Adoption with Termination of Rights, the Judge or Referee may be tempted to ask him if he wants to consent to the adoption. The opposite but similar question might be to ask him if he wishes to contest the adoption with termination of rights. Either question is not correct under the law (MCL 710.39). Instead, the law clearly states that a putative father must clearly and unequivocally request custody of the child. In other words, the court should not ask; the putative father must ask—or not. If he does request custody, he is entitled to a hearing under MCL 710.39, where he has the opportunity to demonstrate to the court why he should have custody of the child.
In addition, some putative fathers may state that they wish to contest the adoption, but do not want to actually become a father, be involved, and help to raise the child. The court should be aware that these situations occur, and if they discover that this is the case, they should proceed forward with the termination of rights.
Another common mistake on the part of Judges or Referees is to ask the putative father if he would like a DNA test to establish his paternity. While on the face of it this may seem like a good idea—a DNA test can clear up uncertain waters—it actually is not part of the Adoption Code. The court has no authority to order a DNA test in an adoption case under Michigan Law. This mistake can be costly. Who pays for the test? How quickly can it be completed? Does the putative father follow-through, or does the case get delayed while he dallies? Worse, the court is unlikely to default or to move ahead with a termination until the results are in, leaving the mother and step-parent in limbo.
- Courts do not always consistently follow the rules. If the putative father chooses to contest the termination and adoption, and is granted a hearing, he must follow the rules, and the court is supposed to enforce them. For instance, he is required to make timely filings and responses. He is required to show up, on time, to a hearing. It is not uncommon for a Judge to grant an adjournment of the hearing if a putative father doesn’t show up, when the rules state that he should be defaulted, or to grant extra time or accept late filings from him without a basis in the court rules. In addition, if a putative father fails to follow a court order, sometimes the court simply does not enforce it’s own orders, and declines to impose penalties, or to default the party, when the court rules clearly provide for these remedies. When a court does not enforce its own orders and allows a putative father to violate these orders, it causes needless delays, frustration, and costs for the mother and step-parent, and leaves a child waiting for the permanency of a family.
- Putative fathers do not have full constitutionally-granted parental rights. Judges and Referees also at times give more weight, and therefore more deference, to a putative father’s status as a parent than is actually given under Michigan Law and under the constitution. This can delay or derail a termination and the step-parent adoption. Well-meaning court personnel may err in wanting to help a putative parent rather than acting in the best interests of the child.
- Representation is not provided by, or ordered by the Court. The Adoption Code does not usually require that the parties by represented. This includes the putative father, the mother and step-parent, and the child being adopted. Unless the child already has a Guardian assigned due to other factors outside of the adoption itself, the child does not have to be represented by a Guardian ad Litem, or by a lawyer. The putative father may choose to hire an attorney to represent him, as can the mother and step-parent.
Step-Parent Adoption – Why Hiring Experienced Counsel Matters
It is usually a good idea to find a lawyer to represent your interests and guide you through the court process. A family law attorney who is familiar with adoption, termination, and the Michigan Adoption Code and Laws, and who is experienced in representing families in adoption, will be able to avoid many of the common mistakes, and will be prepared to work within the court to help complete the process in a timely fashion. At Van Den Heuvel Law, our attorneys are very familiar with adoption cases, the laws and the pitfalls in step-parent adoptions.