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Who is looking out for the children?

Posted on Monday, May 14, 2018

Same-sex marriages and adoptions continue to reach the Michigan appellate courts. A parent in a former same-sex relationship challenged the other parent’s custodial rights by arguing that the probate court who granted the adoption lacked subject matter jurisdiction because it was same-sex adoption. The Court of Appeals disagreed in Usitalo v Landon, per curiam Opinion of the Court of Appeals, approved for publication January 10, 2013 (Docket No. 308240). By holding that the probate court which granted the adoption had subject matter jurisdiction to hear any adoption, the Court of Appeals seemed to purposefully leave open a huge question–is same-sex adoption proper under Michigan law? If the answer is no, then how do adoptive parents from same-sex couples exercise their rights to child support, custody, and parenting time? Does the Child Custody Act and best interests analysis apply? Who is looking out for the children? The concurring opinion by Judge Shapiro raised some very real concerns about the parent's efforts to win a custody battle by challenging the underlying adoption. Recall the case from a few years back, Giancaspro v Congleton, unpublished per curiam Opinion of the Court of Appeals, issued February 19, 2009 (Docket No. 283267). Defendant, a woman that adopted three children with her same-sex partner in Illinois, challenged Plaintiff’s motion for custody, support and parenting time on the grounds that, since the parties were previously in a same-sex relationship and adopted the children together, and Michigan law does not recognize same-sex marriage or same-sex couple adoption, that Plaintiff cannot motion for custody, support and parenting time pursuant to the Child Custody Act as a matter of Michigan public policy. The Court of Appeals ruled that the Child Custody Act does not contemplate the parties’ relationship to each other, but only that they are a natural or adoptive parent of the child. Since both Giancaspro and Congleton were adoptive parents of the children, then the Child Custody Act applied and a best interest analysis would control. Importantly, though, in this case, the parties adopted the children out of state. Again, the Court of Appeals was not forced to consider Michigan Adoption Law. Regardless of whether a Michigan court will recognize the validity same-sex adoption, shouldn’t the paramount question really be – what is in the best interests of the children?

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