Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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This question comes up now and then, usually within the context of two situations, and both of those situations are wrong. There is one, and only one, situation where the concept of "signing off" can arise.
Here are the two "wrong" situations:
1. The mother of the child, who is obviously feeling very oppressed by the burdens of cooperating with, or of even allowing visitation with the child to the father, will say something similar to "Well, I'll just offer to cancel his support, since he's not paying it anyway, I mean, he's six thousand dollars behind, if he'll just sign off his parental rights, and that will be the end of it." Meaning, I suppose, that she won't have to be bothered with visitation anymore, since her ex has no parental rights (specifically the right to visitation) any longer. This is not possible: the judge will not grant the motion, there is no provision in the law for convincing some dad, even a deadbeat dad, to "sign off".
2. The father of the child, who is obviously feeling very oppressed by the burdens of actually paying a little support money for his child, will say something similar to "Well, I'll just offer to sign off of my parental rights, if she (the ex) will just cancel the support arrearage." Meaning, I suppose, that said father is willing to simply not visit the child, nor assert any other parental rights, because those rights have been somehow "signed off". As part and parcel of that, this father expects not to have to pay support each week, and might even get out from under that big fat arrearage, because the parental rights were signed away, "signed off". This is not possible: the judge won't grant such a request, the judge can't grant such a request, because there is no provision in the law for "signing off" of parental rights, whether voluntarily or not, whether it's the dad's idea, or the mom's idea, or whether mom and dad are both in the courtroom, yelling at the judge that they BOTH want it to work this way: it can't be done, except in ONE CIRCUMSTANCE: AN ADOPTION.
That's right: an adoption. Without an adoption, the legal cancelling of some father's parental rights would do nothing other than make the child, by order of the court, a bastard child. (No, it isn't restricted to just fathers. This applies as well to mothers, although it hardly ever comes up; I've never seen one. But, in theory, a mother's parental rights could be terminated. But I'll continue to use the "father" example here in this chapter, because that's the way most people understand it.) There is NO WAY, under the law, to simply enter an order which terminates a father's rights, and therefore, since the child has no father, the child is now a bastard. It won't, and it doesn't, happen.
In an adoption, however, things are different. In an ADOPTION, we have a mother, and her (new) husband, which husband wants to adopt the child. If the adoption is approved by the court, and the Order Of Adoption is entered, then the adopting father is the father of the child, for all purposes. All purposes. That step is permanent, it is not able to be changed, not able to be undone, not by the mother, not by the child, and not by the new adopting father. It is SO PERMANENT that the government steps in and issues a new birth certificate for the child, and removes the old birth certificate from the public record. That child is now the child of Harry Jones, the adopting father, and here is the child's birth certificate to prove it. That's why adoption is such a big deal: it's permanent, it's retroactive (the birth certificate says that the child was born 11 years ago to mom and Harry Jones), and adoption court proceedings are not public records, they are secret, sealed court records.
So, going back to the beginning of an adoption, what happens if mom and her new husband and the child want for new husband to adopt the child? One of the steps taken by the court, as part of the adoption process, is to TERMINATE the parental rights of the PRIOR FATHER. You know, the sperm donor, from years ago. This is a most difficult task, since the rights to one's family are among the most protected by the law. But if there is no termination of the prior father's rights, then there can be no adoption (and vice-versa: the whole point of this chapter is that if there is no adoption, there can be no termination of the prior father's rights).
There is a legal standard, and if the standard is met, there will be an adoption. If the legal st andard is not met, there will be NO adoption. This standard may vary from state to state, so you will want to check with your attorney. In Michigan, and many other states, the prior father's rights can be terminated:
A. By consent; if the prior father appears in court, takes the oath, is advised by the judge that this is a serious, non-reversible step, and the man consents to the adoption, and signs the form. This is the "signing off" that confuses many people.
B. Without the prior father's consent; if the moving party can show BOTH OF THESE THINGS:
1. The prior father has not substantially supported the child for the prior two years, and
2. The prior father has, for the most part, not visited the child for the prior two years.
If those two things can be proved to the court, then the parental rights of the prior father will be terminated, and the adoption may go forward. Please note that the prior father is entitled to notice of the hearing, and that he might appear and oppose that termination. If he can show that numbers 1 & 2 above are NOT correct, then his rights won't be terminated, and there will be no adoption.
If the adoption goes through, is approved by the court, then the prior father, whose rights have been terminated, has no further rights to the child: that child is not his child any more, and that prior father has no rights to visitation, and no obligation to support, etc.
That child is now the adopting father's child. The adopting father has all of the rights, and responsibilities, that every father has. If he and his wife (the mother of the child) get divorced two years later (or two days later), he will be expected to pay support, and to exercise visitation, and all of the usual things, because that child is his child, period.
He has rights that are equal to the mothers, and he may very well be awarded custody of that child, if there is a custody contest.
After an adoption, even the very next day after an adoption, the fact that there was an adoption becomes irrelevant. Essentially, it never happened. There are no records. That's his child. Period.
Good luck with it.