Adopting Your Stepchild When There Is No Legal Father

This article applies to stepparent adoptions when the custodial parent is the child's mother and the other parent is a non-legal father. This article does not apply when the child's father has custody.

Stepparent adoption lets a custodial parent’s spouse adopt the parent’s child in some situations. When the child's noncustodial parent is a man whose paternity has not been legally established, the mother’s spouse can adopt her child. However, the process is different from a stepparent adoption when the other parent is a legal parent. The Michigan Legal Help website cannot help you prepare the court forms you need when the other parent is a non-legal father, but this article gives a broad overview of adoption in this situation. You may want to consider contacting a lawyer if you want to adopt your stepchild, and your stepchild has a non-legal father.

Does the Child Have a Legal Father?

If a child's mother is married to a man when the child is born or conceived, the husband is the child's legal father. This is true even if someone else is the real biological father. If a man fathers a child when the mother is married to someone else, his paternity can only be established if the husband's legal paternity is revoked by a court order.

If the mother is not married when the child is born or conceived, there are several ways to establish the father's paternity. The biological father can become the legal father when:

• The parents sign an Affidavit of Parentage naming him as the father (also called an Acknowledgment of Paternity), and it is filed with the Central Paternity Registry,
• A court names him as the father in a paternity order (usually called an Order of Filiation), OR
• The parents sign a form from the Michigan Department of Health and Human Services (MDHHS) agreeing to submit to genetic testing, and the test results determine that the man is the father.

If one of these things is true, then the child has a legal father. If none of these things are true, the child does not have a legal father, even if there is a biological father.

If your stepchild’s father was married to your wife when the child was born or conceived, or if he became the legal father through an Affidavit of Parentage, you can use the Do-It-Yourself Stepparent Adoption tool to prepare the forms you need for a stepparent adoption.

Michigan law is currently unclear whether stepparent adoption can occur when the child’s father becomes a legal father through an Order of Filiation or under the Genetic Parentage Act. At this time the Michigan Legal Help website cannot help you prepare court forms if this is your situation. You may want to consider contacting a lawyer.

Overview of Adoption Process without a Legal Father

A non-legal father’s parental rights must be terminated before the judge can approve an adoption. For this to happen, the father must either agree to have his parental rights voluntarily terminated or have his parental rights involuntarily terminated by the judge.

You must file and serve the correct forms to start the adoption process. You may want to consider hiring a lawyer to help you with this. The Michigan Legal Help website cannot help you prepare adoption forms in situations where there is no legal father.

The process is shorter if the father agrees to give up his parental rights and consents to the adoption. If the father does not agree to give up his parental rights and appears at the court hearing, the judge will decide whether to terminate his parental rights.

To show the judge that he objects to an adoption, the father must request custody of the child. If the father does not attend the hearing to request custody, his rights can be terminated in his absence. If the father appears and requests custody, the legal standard for terminating his rights will depend on whether he has a custodial relationship with the child or has provided support or care for the mother or child.

Non-legal Father Who Has Acted as a Parent

It is more difficult to terminate the parental rights of a non-legal father when:

• He has an established custodial relationship with the child or
• He has provided regular support or care to the mother during her pregnancy or for either the mother or child at least 90 days before the hearing.

Having a custodial relationship means that the non-legal father has an established relationship with the child. It also means he has exercised responsibility for the care, supervision, and upbringing of the child. If the father has a custodial relationship or he has provided regular support or care, his parental rights can still be terminated if ALL of the following things are true:

• The father has failed to provide regular and substantial support for the child for at least two years before you filed the Petition for Adoption;
• He has regularly and substantially failed to visit, contact, or communicate with the child for at least two years before you filed the Petition for Adoption; and
• He had the ability to support the child and the ability to visit or contact the child during the two-year period.  

Non-legal Father Who Has Not Acted as a Parent

If the non-legal father objects to having his rights terminated but does not have a custodial relationship with the child and has not provided substantial and regular support or care to the mother or child, the judge can terminate his parental rights. To terminate the father's rights, the judge must find it is not in the child’s best interests to give the father custody of the child. The judge considers the best interest of the child factors in making this decision.

The best interest factors include:

• The love, affection, and other emotional ties between the father and child;
• The capacity and disposition of the father to give the child love, affection, and guidance, and to educate the child about and foster the child’s religion, racial identity, and culture;
• The capacity and disposition of the father to provide the child with food, clothing, education, permanence, medical care or other care recognized and permitted under the laws of this state in place of medical care, and other material needs;
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
• The permanence as a family unit of the father’s home;
• The moral fitness of the father;
• The mental and physical health of the father, and of the child;
• The home, school, and community record of the child;
• The reasonable preference of the child, if the child is 14 years of age or less and if the judge considers the child to be of sufficient age to express a preference;
• Any other factor the judge considers relevant to the father’s request for custody.

Termination of parental rights is serious. The judge will not take this decision lightly. You may want to consider hiring a lawyer for the best possible outcome in your case.

Adoption is permanent. If the judge approves the adoption, the biological father can never become the child’s legal father. He can never have custody or parenting time rights, and he won’t have to pay child support or have any other responsibilities for the child. The stepparent becomes a legal parent. Even if the stepparent and mother are later divorced, the stepparent will remain a legal parent.

Finding a Lawyer

You might decide you want a lawyer to help you. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.