By: Timothy P. Flynn

Sometimes, in the post-judgment phase of a divorcee's life, things can go haywire.  The divorce process can push good parents "off-the-grid".

There is a statute in Michigan that provides for the termination of a divorcee's parental rights if that parent neglects to pay child support and fails to communicate with the children for two years.  For this to occur, the other parent must re-marry and the new spouse must petition for the termination of parental rights as part of a step-parent adoption proceeding.

In a case just recently accepted for briefing and argument by the Michigan Supreme Court, the concept of legal custody within the context of the step-parent adoption statute will be decided.  It could come down to the High Court's interpretation of how the legislature used the words, "a" and "the".

The Kent County case, In Re: ARJ, takes a look at whether the re-married parent must have sole legal custody in order for the step-parent adoption petition to be granted.  The case is significant to the extent that it will interpret this important statute as well as possibly provide additional meaning to the phrase "legal custody"; a phrase over which many a battle have been fought in the family courts throughout Michigan over the decades.

The Kent County Family Court terminated the father's rights after a two day trial.  This termination was reversed by the Michigan Court of Appeals which basically held that the parental termination was done in error because both parents had joint legal custody.

So here we have a parent that has basically disappeared for the requisite two years  -no support, no contact-  but who clings to his parental rights through the label in the judgment of divorce awarding him joint legal custody.

In its order granting leave to appeal the Court of Appeals' decision, the Supreme Court specifically identified one of the issues to be briefed, argued and decided as:

Whether the phrase 'legal custody' in [the step-parent adoption statute] is synonymous with the concept of joint custody in the Child Custody Act, whereby 'the parents share decision-making authority as to the important decisions affecting the welfare of the child...

Our High Court also expressly invited the State Bar of Michigan's Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in the case.

Stay tuned to see how the Michigan Supreme Court interprets this crucial phrase; we will track the case for you.  The decision will likely have important implications for divorce proceedings that involve the custody of minor children.

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