In re AJR
496 Mich. 346
| Mich. | 2014Background
- Mother and father divorced in 2009; divorce judgment awarded joint legal custody and granted mother physical custody of the child, AJR.
- Mother remarried; in 2012 mother and stepfather petitioned under the stepparent-adoption statute (MCL 710.51(6)) to terminate father’s parental rights and allow stepfather to adopt, alleging two years of failure to support and failure to visit.
- The circuit court granted termination under MCL 710.51(6) after a bench hearing finding the statutory support and contact elements satisfied.
- The Court of Appeals reversed, holding MCL 710.51(6) requires the petitioning spouse to be married to the sole parent having legal custody (not a parent who shares joint legal custody).
- The Michigan Supreme Court granted leave, considered whether "the parent having legal custody" means sole legal custodian and whether "legal custody" equates to physical custody, and whether any remedy was available to petitioners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does "the parent having legal custody" in MCL 710.51(6) require sole legal custody (exclude joint legal custody)? | Petitioners: statute should permit stepparent adoption even when parent initiating has only physical custody or shares legal custody. | Respondent/Ct of Appeals: phrase requires the petitioning parent to be the only parent having legal custody. | Held: "the parent having legal custody" means the parent with sole legal custody; statute inapplicable where parents share joint legal custody. |
| Is "legal custody" in MCL 710.51(6) synonymous with a right to physical custody? | Petitioners (raised on appeal): ‘‘legal custody’’ should be read as meaning the parent with legally sanctioned physical custody (mother has physical custody so qualifies). | Respondent: legal custody is distinct from physical custody; the statute contemplates decision‑making authority, not mere residential physical custody. | Held: Legal custody is distinct from physical custody; "legal custody" does not mean sole physical custody; mother’s sole physical custody did not make her the sole legal custodian. |
| What remedy is available to petitioners barred from using MCL 710.51(6) due to joint legal custody? | Petitioners: the statutory reading produces unfair practical results (argued but not preserved below). | Respondent/Court: petitioners can seek modification of custody to obtain sole legal custody before pursuing stepparent adoption. | Held: Remedy is to seek modification of custody under MCL 722.27 to obtain sole legal custody, then proceed under MCL 710.51(6); no absurdity in requiring separate custody proceeding. |
Key Cases Cited
- Burkhardt v. Burkhardt, 286 Mich 526 (1938) (early Michigan recognition that legal custody can be separate from physical custody).
- Foxall v. Foxall, 319 Mich 461 (1947) (custody orders distinguishing legal custody from physical custody).
- Lustig v. Lustig, 99 Mich App 716 (1980) (Court of Appeals decision showing pre-1980 practice of separating legal and physical custody).
- Wilcox v. Wilcox, 100 Mich App 75 (1980) (recognition that joint legal custody concerns decision-making while joint physical custody concerns residence).
- Grange Ins. Co. of Mich. v. Lawrence, 494 Mich 475 (2013) (distinguishing physical custody from legal custody under the Child Custody Act).
- In re AJR, 300 Mich App 597 (2013) (Court of Appeals reversal of circuit court’s termination under MCL 710.51(6); affirmed by the Supreme Court).
- Hunter v. Hunter, 484 Mich 247 (2009) (discussing custodial presumptions and best-interests framework applicable in custody modifications).