in Re Ajr Minor ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
In re AJR
Docket No. 147522. Argued March 6, 2014 (Calendar No. 9). Decided June 25, 2014.
Petitioner-mother and respondent were married in 2003 and had one child, AJR, during
their marriage. They divorced in 2009. The divorce judgment gave the parties joint legal
custody of the child, gave physical custody to petitioner-mother, placed support obligations on
respondent, and gave respondent reasonable visitation. Petitioner-mother married petitioner-
stepfather in 2010, and they lived together with AJR as a family. In May 2012, petitioners filed
a petition in the Kent Circuit Court to terminate respondent’s parental rights so that petitioner-
stepfather could adopt AJR under MCL 710.51(6), the stepparent adoption statute. Petitioners
alleged that respondent had failed to provide support or comply with a support order and had
failed to visit or contact AJR for more than two years. The court, Kathleen A. Feeney, J.,
granted the petition and terminated respondent’s parental rights pursuant to MCL 710.51(6).
Respondent appealed, and the Court of Appeals, WILDER, P.J., and METER and RIORDAN, JJ.,
reversed, concluding that respondent’s parental rights had been improperly terminated given that
respondent and petitioner-mother had joint legal custody of AJR and MCL 710.51(6) only allows
a court to terminate the rights of a parent who does not have legal custody. The panel held that
the statute requires that the petitioning parent be the parent having sole legal custody. 300 Mich
App 597 (2013). The Supreme Court granted petitioners leave to appeal. 495 Mich 875 (2013).
In a unanimous opinion by Justice ZAHRA, the Supreme Court held:
Stepparent adoption under MCL 750.51(6) is only available to the spouse of a parent with
sole legal custody of the child, and the statute does not apply to situations in which the child’s
parents share joint legal custody.
1. MCL 710.51(6) provides for the termination of parental rights in the context of
stepparent adoption, stating that if (1) the parents of a child are divorced (or if the parents are
unmarried but the father has acknowledged paternity or is a putative father who meets certain
conditions), (2) the parent having legal custody of the child subsequently marries, and (3) that
parent’s spouse petitions to adopt the child, the court may terminate the rights of the other parent
if the other parent has for two or more years both failed or neglected to provide regular and
substantial support for the child and regularly and substantially failed or neglected to visit,
contact, or communicate with the child. When the plain meaning of the statute is considered in
the context of other provisions concerning stepparent adoption, it is clear that the Legislature
intended the phrase “parent having legal custody of the child” to refer to the parent with sole
legal custody.
2. Asserting that when the stepparent adoption statute was added in 1980 the term “legal
custody” in MCL 710.51(6) meant a legal right to physical custody, petitioners argued that
petitioner-mother was the sole parent having legal custody of AJR because she was the parent
with legally sanctioned physical custody of the child. Physical and legal custody were distinct
concepts, allocable between parents, well before the Legislature added the stepparent adoption
provision to the Michigan Adoption Code, however, and the joint custody rules established by
the Legislature in the same session in which it added the stepparent adoption statute, as well as
caselaw, directly contravene petitioners’ assertion that custody is an indivisible concept.
3. Petitioners are not without a remedy. A parent who shares joint legal custody is free to
seek modification of that custody arrangement under MCL 722.27 and may proceed with
stepparent adoption under MCL 710.51(6) after securing sole legal custody of the child.
Affirmed.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED June 25, 2014
STATE OF MICHIGAN
SUPREME COURT
In re AJR, Minor.
No. 147522
BEFORE THE ENTIRE BENCH
ZAHRA, J.
This case requires us to interpret the stepparent adoption statute, MCL 710.51(6),
which allows the spouse of “the parent having legal custody of the child” to petition to
adopt that child as long as the court orders the termination of the other parent’s parental
rights in a manner consistent with the criteria provided in MCL 710.51(6)(a) and (b).
Applying the stepparent adoption statute to the instant case, the circuit court terminated
respondent-father’s parental rights to the minor child and also allowed petitioner-
stepfather—who is married to petitioner-mother—to adopt the minor child. The Court of
Appeals reversed, reasoning that because respondent and petitioner-mother shared joint
legal custody of the child, petitioner-mother was not “the parent having legal custody of
the child” as required by the stepparent adoption statute. We affirm the judgment of the
Court of Appeals because when the role of the phrase “the parent having legal custody”
within the statutory scheme is considered, it is clear that the Legislature intended that
phrase to refer to the parent with sole legal custody.
We also reject petitioners’ argument, made for the first time on appeal before this
Court, that petitioner-mother is the sole parent having legal custody of the child because
she is the parent with legally sanctioned physical custody of the child. Michigan has long
recognized that the concepts of legal custody and physical custody are distinct and
allocable between parents. This has been so since before the enactment of
MCL 710.51(6). Petitioner-mother has always been free to seek modification of the
custody arrangement under MCL 722.27. If on remand petitioner-mother secures sole
legal custody of the child, then petitioners may proceed with stepparent adoption under
MCL 710.51(6).
I. FACTS AND PROCEEDINGS
Respondent and petitioner-mother were married in 2003. The couple had one
child during their marriage, AJR, but divorced in 2009. The divorce judgment awarded
custody of AJR as follows:
The parties shall share joint legal custody and [petitioner-mother]
shall have the physical custody of the minor child . . . .
The divorce judgment also placed support obligations on respondent and provided that he
would be given reasonable visitation with the child.
Petitioner-mother married petitioner-stepfather in June 2010. The couple lived
together with AJR as a family. In May 2012, petitioners sought to terminate respondent’s
parental rights to allow petitioner-stepfather to adopt AJR. Petitioners filed a petition for
stepparent adoption consistent with MCL 710.51(6)(a) and (b), alleging that “[t]he
2
noncustodial parent has failed to provide support or comply with a support order and
failed to visit or contact the adoptee for a period of 2 years or more.” They also filed a
supplemental petition and affidavit to terminate the parental rights of the noncustodial
parent, alleging that “[a] support order has been entered and the noncustodial parent has
failed to substantially comply with the order for a period of two years or more before the
petition for adoption was filed.”
Following a two-day evidentiary hearing, the circuit court issued an opinion and
order granting the petition and terminating respondent’s parental rights pursuant to
MCL 710.51(6). The circuit court found that respondent had substantially failed to
provide support for the child for the two years preceding the filing of the petition and that
respondent had substantially failed to visit or communicate with the child during the
same period.
Respondent appealed by right in the Court of Appeals, which reversed the circuit
court’s order terminating his parental rights.1 The Court of Appeals concluded that
“because [respondent] and the mother had joint legal custody over the child and the
statute only acts to terminate the rights of those parents who do not have legal custody,
[respondent’s] rights were improperly terminated.”2 The Court of Appeals held that the
language “if the parent having legal custody of the child” in the statute must “be
construed as requiring the parent initiating termination proceedings to be the only parent
1
In re AJR, 300 Mich App 597; 834 NW2d 904 (2013).
2
Id. at 600.
3
having legal custody.”3 The Court of Appeals concluded that “[t]he rights of a parent
who maintains joint legal custody are not properly terminated under MCL 710.51(6).”4
The Court of Appeals observed that the articles “the” and “a” have different meanings
and that the Legislature uses the term “the,” rather than “a” or “an,” to refer to something
particular.5 The Court of Appeals also reasoned that, when possible, every word and
phrase in a statutory provision must be given effect and that a court “should not ignore
the omission of a term from one section of a statute when that term is used in another
section of the statute.”6 The Court of Appeals applied this principle, stating:
Notably, the preceding subsection in the statute, MCL 710.51(5),
uses the phrase “a parent having legal custody” to refer to whom that
particular subsection applies. Contrastingly, MCL 710.51(6) refers to “the
parent having legal custody.” We presume that the Legislature intended to
use the more general phrase “a parent” to refer to either of the child’s
parents in MCL 710.51(5) and that the omission of a general article in MCL
710.51(6) was intentional.[7]
3
Id. at 602.
4
Id.5
Id. at 602-603, citing Paige v Sterling Hts, 476 Mich 495, 509-510; 720 NW2d 219
(2006) (holding that “the” used in front of “proximate cause” in the statute before the
Court referred to the sole proximate cause, thereby clarifying that the phrase “the
proximate cause” exclusively contemplates one cause).
6
AJR, 300 Mich App at 603.
7
Id., citing Farrington v Total Petroleum, Inc., 442 Mich 201, 210; 501 NW2d 76
(1993), and Robinson v City of Lansing, 486 Mich 1, 14 n 13; 782 NW2d 171 (2010)
(stating that reviewing courts “must follow these distinctions between ‘a’ and ‘the’
because the Legislature has directed that ‘[a]ll words and phrases shall be construed and
understood according to the common and approved usage of the language’ ”), quoting
MCL 8.3a (alteration in original).
4
It being undisputed that the divorce judgment provided that respondent and petitioner-
mother would maintain joint legal custody of AJR, the Court of Appeals concluded that
MCL 710.51(6), which requires that the petitioning parent be “the parent having legal
custody,” was inapplicable in the instant case.8
This Court granted leave to appeal to determine whether MCL 710.51(6)
necessarily refers to “the” sole parent with legal custody and whether the term “legal
custody” in the statute is synonymous with the concept of joint custody in § 6a(7)(b) of
the Child Custody Act, MCL 722.26a(7)(b), under which the parents “share decision-
making authority as to the important decisions affecting the welfare of the child,” and
also to explore the remedies, if any, available to the petitioners in this case if the Court of
Appeals had not erred in interpreting MCL 710.51(6).9
II. STANDARD OF REVIEW
Whether the application of the stepparent adoption provision is limited to
situations in which one parent has sole legal custody of the child is a question of statutory
interpretation, which we review de novo.10
8
Id. at 603-604.
9
In re AJR, 495 Mich 875, 875-876 (2013).
10
In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
5
III. ANALYSIS
A. INTERPRETING MCL 710.51(6)
As always, the objective of statutory interpretation “is to give effect to the
Legislature’s intent,” and “[t]o ascertain that intent, this Court begins with the statute’s
language.”11 “When that language is unambiguous, no further judicial construction is
required or permitted, because the Legislature is presumed to have intended the meaning
it plainly expressed.”12 Moreover, “[w]hen interpreting a statute, courts must ascertain
the legislative intent that may reasonably be inferred from the words expressed in the
statute,” which “requires courts to consider the plain meaning of the critical word or
phrase as well as its placement and purpose in the statutory scheme.”13
MCL 710.51(6) provides for the termination of parental rights in the context of
stepparent adoption:
(6) 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
who meets the conditions in [MCL 710.39], 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.
11
People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).
12
Id.13
Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 112; 845 NW2d 81 (2014) (quotation
marks and citations omitted).
6
(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.
Accordingly, a court may only terminate parental rights under the stepparent adoption
statute after concluding that both Subdivision (a) and (b) are satisfied, and also that the
conditions provided in the preceding paragraph are satisfied.14 The phrase “the parent
having legal custody of the child” in the preceding paragraph of the stepparent adoption
statute is the focus of this case.
Petitioners maintain that the Court of Appeals erred by interpreting the phrase “the
parent having legal custody of the child” as necessarily referring to the sole parent with
legal custody. We disagree because when the role of the phrase “the parent having legal
custody” within the statutory scheme is considered, it is clear that the Legislature
intended that phrase to refer to the parent with sole legal custody.
When interpreting the phrase “the parent having legal custody,” we may consider
the role of this phrase within the statutory scheme.15 Under the Michigan Adoption
Code, two provisions are particularly relevant when considering the process by which a
stepparent may adopt a child: MCL 710.51 and MCL 710.43. There are two possible
avenues pursuant to MCL 710.51 for a petitioning stepparent to adopt a child: adoption
by parental consent under MCL 710.51(1) and the procedure for stepparent adoption
14
In re Hill, 221 Mich App 683, 692; 562 NW 2d 254 (1997); see also ISB Sales Co v
Dave’s Cakes, 258 Mich App 520, 529; 672 NW2d 181 (2003) (reasoning that a proviso
preceded by “if” “restricts the operative effect of statutory language to less than what its
scope of operation would be otherwise”).
15
Fradco, 495 Mich at 112.
7
provided in MCL 710.51(6). MCL 710.43 provides the rules regarding the consent
required under MCL 710.51(1) for adoption by parental consent, and MCL 710.43(7)
specifically addresses the requirements for stepparent adoption by parental consent.
MCL 710.43(7) provides:
If the petitioner for adoption is married to the parent having legal
custody of the child and that parent has joined the petitioner in filing the
petition for adoption, that parent shall not execute a consent to the adoption.
The consent of the parent who does not have legal custody of the child and
whose parental rights have not been terminated shall be executed before the
court may enter an order of adoption under [MCL 710.56]. [Emphasis
added.]
Thus, in order for a petitioning stepparent to adopt a child by parental consent, the parent
without legal custody must consent. By directly contrasting the phrases “the parent
having legal custody” and “the parent who does not have legal custody,” we conclude
that the Legislature intended “the parent having legal custody” to mean the parent with
sole legal custody.
Conversely, when consent from a parent without legal custody has not or cannot
be obtained, MCL 710.51(6) provides an alternative procedure that allows the spouse of
“the parent having legal custody of the child” to petition the court to involuntarily
terminate the other parent’s parental rights, if the statutory requirements have been
satisfied, so that the child may then be adopted by the spouse of the parent with legal
custody.
Importantly, the phrase “the parent having legal custody” appears in both
MCL 710.51(6) and MCL 710.43(7). Because the Legislature chose to use the same
phrase in MCL 710.51(6), which like MCL 710.43(7) also addresses stepparent adoption,
8
we conclude that the Legislature intended for that phrase to have the same meaning. In
other words, because the Legislature expressly contrasted the phrase “the parent having
legal custody” with the phrase “the parent who does not have legal custody” in
MCL 710.43(7), the phrase “the parent having legal custody” within MCL 710.51(6) also
was intended to be contrasted with the parent not having legal custody.16 Therefore, the
term “other parent” in MCL 710.51(6) refers to the parent not having legal custody
pursuant to the distinction made in MCL 710.43(7). Moreover, the plain language of the
statute does not otherwise indicate that the phrase “the parent having legal custody”
should be interpreted differently in the context of MCL 710.51(6) than it is in
MCL 710.43(7).17 Therefore, when consent to stepparent adoption has not or cannot be
obtained, petitioners must follow the statutory procedures to obtain sole legal custody
before seeking termination of the respondent-parent’s parental rights under
MCL 710.51(6). For these reasons, we affirm the Court of Appeal’s conclusion that the
phrase “the parent having legal custody” in MCL 710.51(6) is inapplicable to situations
involving joint legal custody.
16
See Robinson, 486 Mich at 16 (stating that “the Legislature is not required to be overly
repetitive in its choice of language”). Thus, it was not necessary for the Legislature to
again directly contrast “the parent having legal custody” with “the parent who does not
have legal custody” in MCL 710.51(6).
17
Our conclusion that the Legislature intended the phrase “the parent having legal
custody” to refer to the parent with sole legal custody is also consistent with prior case
law recognizing that “the” and “a” have distinctive meanings where the Legislature has
qualified the same word with the definite article “the” in one instance and the indefinite
article “a” in another instance. See, e.g., Robinson, 486 Mich at 14-15.
9
Petitioners also invite this Court to reverse the Court of Appeals’ judgment by
resorting to the absurd-results doctrine of statutory interpretation. Specifically,
petitioners argue that the statutory construction of the Court of Appeals is absurd
because, under that construction, stepparent adoptions will never be possible when the
other parent has joint legal custody, even if that parent has failed to regularly support or
maintain contact with the child for the period provided in MCL 710.51(6). But there is
nothing absurd about limiting the application of MCL 710.51(6) exclusively to parents
having sole legal custody. Contrary to petitioners’ concern, a parent who shares joint
legal custody is free to seek modification of that custody arrangement under MCL 722.27
and may proceed with stepparent adoption under MCL 710.51(6) after securing sole legal
custody of the child.18 This result is akin to the scheme provided in the juvenile code,
which in MCL 712A.19b(1) requires that a court “shall hold a hearing to determine if the
parental rights to a child should be terminated and, if all parental rights to the child are
terminated, the child placed in permanent custody of the court.” The hearing required
under MCL 712A.19b(1) is a separate proceeding from a review hearing under MCL
712A.19 or a permanency planning hearing under MCL 712A.19a. We do not question
the Legislature’s wisdom in enacting MCL 710.51(6). While it might be debatable
whether the policy behind the statute is a good one, its plain application to the facts of
this case does not produce an absurd result. Simply put, there is nothing absurd about
18
See Part III-B of this opinion.
10
requiring a separate proceeding for the sake of modifying a preexisting custodial
arrangement falling outside the scope of the stepparent adoption statute.19
Having concluded that the stepparent adoption statute applies only to those
situations involving a sole legal custodian, we address petitioners’ alternative argument,
which they raise for the first time on appeal before this Court, that petitioner-mother is
the sole parent having legal custody of AJR because she is the parent with “legally
sanctioned physical custody of AJR.” Petitioners premise this argument on the notion
that when the stepparent adoption statute was added in 1980 the term “legal custody” in
what ultimately became MCL 710.51(6)20 meant “a legal right to physical custody.”
They argue that despite the fact that the divorce judgment granted joint legal custody to
respondent and petitioner-mother, the divorce judgment also granted sole physical
custody to petitioner-mother, and therefore, petitioner-mother is “the parent having legal
custody” of AJR.
The term “legal custody” is not defined in the Michigan Adoption Code. An
undefined term must be accorded its plain and ordinary meaning, except when the term
19
To the extent that trial courts in this state have adopted a practice that allows for
stepparent adoption in a manner that we now recognize as being contrary to the statute,
this decision guides trial courts on the statute’s proper scope and applicability. As this
opinion makes clear, no longer ought the statute be employed when the parent initiating
stepparent adoption proceedings is not the parent with sole legal custody of the child.
20
See note 29 of this opinion.
11
has acquired a unique legal meaning, in which case the term “ ‘shall be construed and
understood according to such peculiar and appropriate meaning.’ ”21
The term legal custody has acquired a unique legal meaning in Michigan law, and
because of this, we interpret the term in accordance with its meaning in legal dictionaries
and at common law.22 The ninth edition of Black’s Law Dictionary (published in 2009)
defines the term “custody” in the family-law context as
[t]he care, control, and maintenance of a child awarded by a court to a
responsible adult. • Custody involves legal custody (decision-making
authority) and physical custody (caregiving authority), and an award of
custody [usually] grants both rights.[23]
This Court recently discussed the distinction between physical custody and legal
custody, albeit under the Child Custody Act. In Grange Ins Co of Mich v Lawrence we
noted that “[p]hysical custody pertains to where the child shall physically ‘reside,’
whereas legal custody is understood to mean decision-making authority as to important
decisions affecting the child’s welfare.”24
Neither this Court’s decision in Grange nor the ninth edition of Black’s Law
Dictionary supports petitioners’ interpretation of the term “legal custody.” Nonetheless,
21
Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247 (2006),
quoting MCL 8.3a.
22
Id. at 439-440 (stating that “because ‘mutual mistake of fact’ is a legal term, resort to a
legal dictionary to determine its meaning may also be helpful”).
23
Black’s Law Dictionary (9th ed), p 441.
24
Grange Ins Co of Mich v Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013)
(comparing MCL 722.26a(7)(a) (physical custody) with MCL 722.26a(7)(b) (legal
custody)).
12
petitioners’ interpretation is not without support. Our inquiry is the intent of the
Legislature that in 1980 added the provision that ultimately became the statute before
us,25 MCL 710.51(6).
To determine the Legislature’s intent in 1980, we refer to a contemporaneous legal
dictionary. The prominent legal dictionary in use in 1980—the fifth edition of Black’s
Law Dictionary (published in 1979)—did not expressly acknowledge the distinction
between “legal custody” and “physical custody” in the family-law context.26 Rather, the
fifth edition of Black’s Law Dictionary defined “custody of children” as “[t]he care,
control and maintenance of a child which may be awarded by a court to one of the
parents as in a divorce or separation proceeding.”27 This definition—and the lack of a
definition of “joint custody” in the fifth edition—reflect the reality that in 1980 it was not
unusual for one parent to come away from a divorce with sole physical and legal custody
of a child.28
25
See note 29 of this opinion.
26
The fifth edition of Black’s Law Dictionary discussed the term “custody” as a broad
concept, defining it as “[t]he care and control of a thing or person,” and noted that “[t]he
term is very elastic and may mean actual imprisonment or physical detention or mere
power, legal or physical, of imprisoning or of taking manual possession.” Black’s Law
Dictionary (5th ed), p 347. “Legal custody” was defined, generally, in the fifth edition as
“[r]estraint of or responsibility for a person according to law, such as a guardian’s
authority over the person or property, or both, of his ward. See also Commitment;
Custody; Guardian; Ward.” Id. at 804.
27
Id. at 347.
28
Black’s Law Dictionary (9th ed), p 442, defines “joint custody” in part as “[a]n
arrangement by which both parents share the responsibility for and authority over the
child at all times, although one parent may exercise primary physical custody.”
13
Although the legal dictionary contemporaneous with the statute arguably supports
petitioners’ premise that “legal custody” included a right to physical custody in 1980,
other factors militate against petitioners’ interpretation. While the term “custody” was
and is often used to refer to the complete bundle of custodial rights (i.e., both physical
and legal custody), petitioners’ theory relies on the meaning of “legal custody.” Insight
into the meaning of the term “legal custody” can be found by review of a related
statute—MCL 722.26a—which was added during the same legislative session in which
MCL 710.51(6) was added.29 MCL 722.26a(7), a portion of the Child Custody Act
concerning joint custody, provides:
(7) As used in this section, “joint custody” means an order of the
court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with
each of the parents.
(b) That the parents shall share decision-making authority as to the
important decisions affecting the welfare of the child.
Thus, the Legislature divided the concept of custody into two categories—custody in the
sense of the child residing with a parent and custody in the sense of a parent having
decision-making authority regarding the welfare of the child. Therefore, the joint-
custody rules established by the Legislature in the same session in which the stepparent
29
1980 PA 509 added the stepparent adoption provision to MCL 710.51 as Subsection
(5), effective January 26, 1981. It postdated MCL 722.26a, added by 1980 PA 434(effective January 14, 1981), by almost two weeks. MCL 710.51 was subsequently
amended by 1982 PA 72 to renumber Subsection (5) as Subsection (6) and add the
language “or if the parents are unmarried but the father has acknowledged paternity or is
a putative father who meets the conditions in [MCL 710.39].”
14
adoption statute was added directly contravene petitioners’ assertion that custody is an
indivisible concept.
A survey of Michigan caselaw further confirms that physical custody and legal
custody were distinct concepts, allocable between parents, well before 1980. In
Burkhardt v Burkhardt, a case decided by this Court in 1938, the circuit court modified
its custody order to state that “[the father] shall have the legal custody and control of said
minor child . . . but that said child shall be in the actual care and custody of [third parties
who had contracted to care for the child]. . . .”30 In other words, the father in Burkhardt
was awarded legal custody but not physical custody. Similarly, Foxall v Foxall, a 1947
decision of this Court, involved a 1946 custody order that also distinguished between
legal custody and physical custody by providing that
the legal custody of the children [would] remain in the friend of the court
and their physical custody [would] remain with the father until the further
order of the court, but upon the condition that the children remain at the
home of their paternal grandmother under the present prevailing
conditions.[31]
Additionally, Lustig v Lustig, a case decided by the Court of Appeals in 1980, involved a
1979 custody order that distinguished between legal custody and physical custody,
providing “that legal custody of the minor children . . . be awarded jointly to the parents,
plaintiff and defendant herein,” and that “[p]hysical custody of [one of the children] was
30
Burkhardt v Burkhardt, 286 Mich 526, 531; 282 NW 231 (1938) (quotation marks
omitted).
31
Foxall v Foxall, 319 Mich 461; 29 NW2d 912 (1947).
15
to alternate between plaintiff and defendant.”32 Finally, in Wilcox v Wilcox, a case
decided by the Court of Appeals in 1980, the Court expressly recognized the distinction
between legal custody and physical custody, stating, “There is a difference between joint
legal custody, which is concerned with making decisions which significantly affect the
life of a child, and joint physical custody, which is concerned with the child living with
the parent.”33 Indeed, Burkhardt, Foxall, Lustig, and Wilcox illustrate that the concepts
of legal custody and physical custody were divisible long before the enactment of
MCL 710.51(6).34
We also find persuasive that the subsequent edition of Black’s Law Dictionary (the
sixth and centennial edition) published 11 years after the fifth edition and 9 years after
the enactment of the stepparent adoption statute, defines “joint custody” as involving
both parents sharing responsibility and authority with respect to the
children; it may involve joint “legal” custody and joint “physical” custody.
Such includes physical sharing of child in addition to both parents
participating in decisions affecting child’s life, e.g., education, medical
problems, recreation, etc . . . .[35]
32
Lustig v Lustig, 99 Mich App 716, 719; 299 NW2d 375 (1980).
33
Wilcox v Wilcox, 100 Mich App 75, 84; 298 NW2d 667 (1980), vacated and remanded
411 Mich 856 (1981) (vacated and remanded for reconsideration in light of 1980 PA 434,
which added MCL 722.26a).
34
See also In re Brown, 22 Mich App 459, 461; 177 NW2d 732 (1970) (discussing a
custody order releasing “both physical and legal custody of the children” to the mother).
35
Black’s Law Dictionary (6th ed), p 385 (citation omitted). Indeed, we note that the
preface of this edition appreciates that “[n]early every area of the law has undergone
change and development since publication of the Fifth Edition in 1979” and that “[t]he
vocabulary of the law has likewise continued to change and expand to keep pace.” Id. at
iii.
16
The definition of “joint legal custody” did not evolve into its contemporary
understanding overnight, but it does seem quite clear, at least a posteriori, that many state
courts during the 1980s either already recognized, as Michigan courts did, or increasingly
began to embrace the above understanding of joint legal custody. Given that Michigan
courts had acknowledged the concept of “joint legal custody” well before the enactment
of MCL 722.26a(7), we find it entirely plausible that the Michigan Legislature had
likewise embraced this understanding of joint legal custody when it added
MCL 710.51(6).
In sum, petitioners simply fail to demonstrate that “legal custody” ever meant a
legal right to physical custody or that the concepts of physical custody and legal custody
are or ever were inextricably merged. Rather, pre-1980 evidence demonstrates that legal
custody and physical custody were separate concepts allocable between parents long
before the enactment of the stepparent adoption statute. Even before 1980, a parent could
have had legal custody without having the legal right to physical custody. In light of
these conclusions, and because the divorce judgment clearly awarded joint legal custody
to respondent and petitioner-mother, petitioner-mother was not “the parent having legal
custody,” and therefore, the stepparent adoption statute did not apply in the instant case.
B. REMEDY
In light of our holdings, we now address “what, if any, remedy is available to the
petitioners in this case that is consistent with the general purposes of the Adoption Code,
MCL 710.21a.”36 Under the Child Custody Act, the court may “[m]odify or amend its
36
AJR, 495 Mich at 876.
17
previous judgments or orders for proper cause shown or because of change of
circumstances until the child reaches 18 years of age . . . .”37 Thus, petitioner-mother has
always been free to seek modification of the custody arrangement so that she is the parent
having sole legal custody of AJR. If she does so and her request is granted, petitioners
may proceed with stepparent adoption under MCL 710.51(6).
Requiring such action is not unduly burdensome and is consistent with the general
purposes of the Michigan Adoption Code, which exists not only to “safeguard and
promote the best interests of each adoptee,” but also to “protect the rights of all parties
concerned.”38 This approach is also consistent with the general presumption followed by
Michigan courts that, when a third party such as petitioner-stepfather is involved, a
child’s best interests are served by awarding custody to the natural parent or parents.39
Consequently, petitioners have an avenue by which to pursue stepparent adoption, while
at the same time respondent may defend his custodial rights to the extent provided by
37
MCL 722.27(1)(c).
38
See MCL 710.21a(b).
39
See, e.g., Hunter v Hunter, 484 Mich 247, 279; 771 NW2d 694 (2009) (holding that
“the established custodial presumption in MCL 722.27(1)(c) must yield to the parental
presumption in MCL 722.25(1)”). MCL 722.25(1) provides:
If a child custody dispute is between the parents, between agencies,
or between third persons, the best interests of the child control. If the child
custody dispute is between the parent or parents and an agency or a third
person, the court shall presume that the best interests of the child are served
by awarding custody to the parent or parents, unless the contrary is
established by clear and convincing evidence.
18
law.40 This is the legal framework provided by the Legislature; to the extent that
petitioners argue that this remedy is unrealistic or practically unavailable, we disagree.
However, we note that to the extent that petitioners are dissatisfied with the remedy
available to them in light of their circumstances, they may seek recourse from the
Legislature.
IV. CONCLUSION
Because the express language of MCL 750.51(6) provides that stepparent adoption
under the statute is only available to the spouse of “the parent having legal custody of the
child,” meaning the parent with sole legal custody, the statute does not apply to situations
like the instant case in which the parents share joint legal custody of the child. Therefore,
we affirm the judgment of the Court of Appeals. Petitioners are free to seek modification
of the custody arrangement under MCL 722.27. We do not retain jurisdiction.
Brian K. Zahra
Robert P. Young, Jr.
Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Bridget M. McCormack
David F. Viviano
40
See MCL 722.27(1)(c) and MCR 3.977 (termination of parental rights).
19