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Legal Clinic Advice: Adoption

FAMILY ADOPTIONS

About the Professor: 

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing adoption law in Eaton Rapids. Dr. Baranski is a Certified Adoption Attorney.  Dr. Baranski has been teaching since 1989.  He has taught at Western Michigan University Cooley Law School, where he developed the course, “Adoption Law and Procedure” and wrote the text. He has also taught at Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

Definition of Relative

Relative Adoptions are the most preferred type of adoption, because the child/children get to stay with their biological family. It’s important to keep contact with the bio family – knowing where you come from, your family’s values, morals, and traditions, your medical history – it all shapes who you are as a person.

Relative – A person related to the adoptee within the fifth degree by marriage, blood or adoption. They include:  Parent, step-parent, grandparent, step-grandparent, brother, step-brother, sister, step-sister, uncle, step-uncle, aunt, step-aunt, first cousin, step-first cousin, great-aunt, stepgreat

aunt, great-uncle, step-great uncle, great-grandparent, step-great grandparent, first cousin once removed, step-first cousin once removed, great-great-grandparent, step-great great-grandparent, great-great-uncle, step-great-great-uncle, great-great-aunt, step-great-great-aunt, great-great-great-grandparent, or step-great-great-great-grandparent.

Background Check

The first step for the family adoption is to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind.  The State of Michigan police will do a background check.  Like the stepparent adoption, the probate court will send an employee to the adopters’ home for an investigation.

Guardianship

If the grandparents already have a guardianship in place, and the parent that refused to voluntarily relinquish their parental rights has not visited or supported their child for the last two years before the filing of the petition of the adoption, their parental rights shall be terminated and the child[ren] will be placed with the grandparents for adoption if it is in the child[ren]’s best interest.

Voluntary Termination of Parental Rights

The biological parents are notified and requested to sign off their parental rights. If the biological parents are not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.

Often, the parents have been ordered to pay child support and is behind in payments. IF all the back child support is owed to the a family member with custody, or to a custodial parent, and not to the State, the family member or custodial parent may forgive or waive those amounts, if the biological parents will voluntarily release their parental rights.

Involuntary Termination of Parental Rights

It needs to be determined if the father is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.

Refusal of Non-Custodial Parents to Voluntarily Terminate Parental Rights

If the non-custodial parents objects to the family adoption, a separate lawsuit must be filed with the probate court, alleging, neglect.  The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly.  For example, a petition for adoption is filed on August 15, 2018.  The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 to see what visits and monies were paid during that two year period.  Often, the custodial family member will contact the non –custodial parents BEFORE filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.

Contestation

If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.

Guardian Ad Litem

If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren].  This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL].  Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.

Trial

The family member, non-custodial parents, and the GAL will go before the judge in the probate court for a trial.  The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.

Standard to Terminate Parental Rights

The standard for the Court is clear and convincing evidence.  If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights.  The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.

Appeal

After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals.  Again, the non-custodial parent will have a court appointed attorney to do the appeal.

Formal Placement

The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.

Waiting Period

There is a 6 month to 18 month waiting period for an adoption. Often, the family member has been living with the child[ren] for years so there is no need to see if there will be a  “fit” for a long period of evaluation. Typically, a request for immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued.

 

ADOPTIONS-DIRECT PLACEMENT OF A BABY

DIRECT PLACEMENT ADOPTION

Typically, a direct placement adoption is for a new baby.

Who May Adopt

Any potential adoptive parent may adopt and cannot be discriminated against solely on age, race, religious affiliation or income level.  A single adoptive parent cannot be discriminated against due to marital status alone.  There must be some other factor for an unsatisfactory assessment than marital status.

Who May Place Child for Adoption

Any person who is the legal parent may sign their parental rights away, IF there is someone to take their place. For example, a parent may not want to pay child support any more, and desire to sign off their parental rights. However, only if someone else picks up the tab, so to speak, they cannot sign off their parental rights.

Minor Birthparent

If a birthparent is a minor (under 18 years old at the time of birth), a parent of the birthparent must sign for her and/or him in the adoption proceedings. If there are no parents involved, the probate court will appoint a Guardian Ad Litem to investigate.

Relatives of Birthparents

The relatives of the birthparents have no rights UNLESS they are the parents of an unemancipated minor birthparent.  The baby’s grandmother or grandfather could block the adoption of the minor birthparent.

Background Check

The first step for the adopting person, or couple to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind.  The State of Michigan police will do a background check. The adopters may have as many home study reports done as they desire, so long as the birthparents have the opportunity to review all of them.  The home study is good for one year. If an adoption is not filed within one year, an update must be made.

Finding a Birthparent

Adoptive parents search for leads for birthparents through word of mouth, their religious organizations, by advertising in newspapers, online, and with certified adoptive attorneys.  Often, a certified adoption attorney representing a birthparent, will contact another certified adoption attorney who has adoptive couples he/she is representing.  When a birth parent is looking at a certified adoption attorney’s files, all of the home studies of all the clients must be shown to the birthparent.

The birthparents review the adoptive couple (person) home study or preplacement assessment to see if she is interested in them or has narrowed it down to 3 to 5 couples.  It is common for the birthparent to interview prospective adoptive couples in an open adoption.

Closed Adoption

The closed adoption is the most familiar to people where the identities of all parties is confidential and none of the parties know the other’s names or other identifying information.  All information required by the court is kept confidential in the adoption file. For example, genetic/health history of the birthparents is required for the baby’s health in the future without the names of the birthparents.

Open Adoption

The open adoption is where the adoptive parents and the birthparents know each other’s identity and all the parties meet at the hospital at the time of the birth. The open adoptions can involve the adoptive parent taking the birthmother to her prenatal medical appointments, telephone calls between them, and even having the adoptive mother in the delivery room at the time of the birth.  Additionally, after the birth, letters and photographs of the baby may be exchanged.

Temporary Placement

A temporary placement is done before approval by the court. Placement must be with a Michigan resident.

Requirements:

  1. Prospective Adoptive parents are Michigan residents;
  2. Assisted by a facilitator (adoption agency or certified adoption attorney)
  3. Documents evidencing transfer:
  4. By parent, guardian, certified adoption attorney

AND

  1. Prospective Adoptive Parent

The Temporary Transfer of physical custody means that the birthmother is placing the baby with the adoptive couple (person) on the express condition that if she changes her mind before the court hearing, that the adoptive couple (person) must return the baby within 24 hours of being notified.  Therefore, the adoptive couple must understand and agree, that the temporary transfer is temporary, temporary.

Filing Adoption

The Certified Adoption Attorney for the adoptive couple (person) files a petition for adoption and evidence of the physical transfer with the probate court in the county in which the adoptive couple (person) lives.

Indian Child Welfare Act

In the event the birthparents are members of a Native American tribe or eligible to become members of a tribe, that tribe must be contacted to see if they have any interest in a tribal member adopting the child.

Multiple Representation-Prohibited

Certified adoption attorneys by professional ethics and by State law cannot represent both the birthparents and the adoptive couple.

Regulations

  1. The Michigan Department of Social Services, [DSS] is mandated to prepare a pamphlet on rights and responsibilities for everyone and all parties must have a copy.
  2. All Attorney fees and expenses must be itemized and reported to the court.

What may be paid and What must be paid by Adopting person(s)

Expenses of the Birthmother

  1. Adoptive couple MAY pay the following expenses:
  2. Travel
  3. Rent
  4. Utilities
  5. Medical
  6. Clothing
  7. Food
  8. Adoptive couple SHALL pay the following expenses:
  9. All attorney fees for the adoptive couple AND birthparents
  10. Adoption counseling for the birthparents
  11. All of the expenses may be paid during the pregnancy and up to six weeks after the birth of the child. If all of the expenses are paid and the birthparent(s) change their mind on the adoption there is NO REFUND.  This was expressly discussed and enacted by the Michigan Legislature.  The reason all of the risk is borne by the adoptive couple (person) was the fear that if a birthmother changed her mind and decided to keep the baby, there would be tremendous financial pressure on her to consent to the adoption to avoid having to repay all of the expenses. The only exception would be if the birthmother was attempting a fraud by going to two families for adoption at the same time.

Birthparent Counseling

Birthparents upon request must be provided with counseling.  The counseling that the birthparents receive is NOT confidential.  The information revealed to the psychologist/counselor may be revealed to the adoptive couple.  For example, if the birthparent is having second thought on the adoption may be revealed by the therapist to the adoptive couple or their attorney.

Consent

The birth parents’ Certified Adoption Attorney along with the birthparents go to the Probate Court to sign the legal consent to the termination of their parental rights.

Birthparents’ Parental Rights are Terminated

The birthparents either have to appear personally in court and sign off their parental rights or a petition to involuntarily terminate their parental rights must be filed.  The birthparents have 21 days from the time that they signed off or had their parental rights terminated to file an appeal for cause. It does NOT mean that the birthparent can simply change their mind.  It does mean that if the birthparent was under the influence of drugs, or alcohol, duress, fraud or mistake, etc., that the case could be re-opened.  Once the 21 day period has lapsed the baby is legally placed with the court.  To avoid any problems of the birthparents revoking their consent, a Certified Adoption Attorney is always provided to the birthparents so that they are fully advised by counsel of their actions and that there are no reasons for cause.

Formal Placement

The judge takes the consent of the birthparents and makes an Order of Formal Placement to the adoptive couple (person).

Waiting Period

There is a 6 month to 18 month waiting period for an adoptive couple (person) to be evaluated and then the court hearing with the certified adoption attorney to finalize the adoption by the probate court judge and a new birth certificate is issued.

Every 90 days, there has to be an update on the Home study and submitted to the court.

Adoption is Finalized

Once the birthparents’ rights are terminated, the adoptive couple requests to become the legal parents of the baby.  The probate judge needs an evaluation of this couple ( person) to see if they qualify under the statute to raise the child.  The judge may rely upon the Home study or Preplacement assessment in making this decision so long as the previous report is not more than one (1) year old.

 STEP PARENT ADOPTIONS

 

About the Professor:

 

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing adoption law. Dr. Baranski is a Certified Adoption Attorney.  Dr. Baranski has been teaching since 1989.  He has taught at Western Michigan University Cooley Law School, where he developed the course, “Adoption Law and Procedure” and wrote the text. He has also taught at Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

 

STEP PARENT ADOPTION

A parent has a child or children with someone not their spouse.  The spouse of the parent is not the biological parent of the child or children.  A step parent adoption means that the parties are legally married.  The non- parent spouse wants to adopt their spouse’s child or children.

Unlike the Direct Placement Adoption, in a step parent adoption, one person is already the parent of the child or children.  The biggest issue in a step parent adoption is the termination of the parental rights of the other parent.

Background Check

Unlike in a Direct Placement Adoption, the Probate Court will do the background check in a step parent adoption.  The State of Michigan police will do a background check.  This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind. Typically, a court employee will come to the step parent home for an interview, and to obtain all the necessary paperwork. Every 90 days, there is an update on how things are going with the child[ren] and the stepparent.

Voluntary Termination of Parental Rights

The biological parent is notified and requested to sign off their parental rights. If the biological parent is not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.

Often, the other parent is ordered to pay child support and is behind in payments. IF all the back child support is owed to the custodial payment, and not to the State, the custodial parent may forgive or waive those amounts, if the non-custodial parent will voluntarily release their parental rights.

Involuntary Termination of Parental Rights

It needs to be determined if the other parent is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.

If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

(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 failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.

(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 the filing of the petition.

It is required to have TWO years of non- support and TWO years of non-contact to be able to terminate the parental rights of the non-custodial parent against their will.

Refusal of Non-Custodial Parent to Voluntary Terminate Parental Rights

If the non-custodial parent objects to the step-parent adoption, a separate lawsuit must be filed with the probate court, alleging, neglect.  The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly.  For example, a petition for adoption is filed on August 15, 2018.  The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 to see what visits and monies were paid during that two year period.  Often, the custodial parent will contact the non –custodial parent BEFORE the filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.

Contestation

If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.

Guardian Ad Litem

If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren].  This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL].  Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.

Trial

The stepparent, custodial parent, non-custodial parent, and the GAL will go before the judge in the probate court for a trial.  The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.

Standard to Terminate Parental Rights

The standard for the Court is clear and convincing evidence.  If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights.  The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.

Appeal

After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals.  Again, the non-custodial parent will have a court appointed attorney to do the appeal.

Formal Placement

The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.

Waiting Period

There is a 6 month to 18 month waiting period for a step parent adoption. Often, the stepparent has been living with the child[ren] for years so there is no need to see if there will be a  “fit” for a long period of evaluation. Typically, a request for an immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued.

 

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