Sibling Visitation Question

[BBQ Pope]

i'm currently going through a divorce in Michigan. i have been a father to my ex-wife's son since he was 18 months old... the only father he's ever known. he's now pushing 11 years. however, i never legally adopted him. a foolish mistake on my part but i never thought we'd get divorced. his mother says she still recognizes me as his father in every sense, but that doesn't mean anything legally. my attorney said that, despite the fact we both still want an adoption to take place (especially now that we're getting divorced), because we are separated the court will not allow us to go through with an adoption. it's simply too late, but i have to do something to try and keep him close. he needs me and i need him, but his mom is so flakey and changes her "plans" so often that i never know what she'll do. all i know is that she has only been thinking about herself and what makes her happy.

we also have a 3 year old boy together. i am wondering if my son (the 3 year old) and his half-brother can get visitation rights. their mother has said that she will move if she can get a better job and will, of course, take her son with her. can i put some sort of visitation together for my son and his half-brother?

 

[nextwife]

Legally, your child can spend time with their siblings while with mom, unless mom agrees.

 

[stealth2]

nw - I assume you mean unless Mom *Dis*agrees....

OP - what makes you so certain you will have custody of the 3yo?

 

[BBQ Pope]

the mother and i have already agreed on joint physical and legal custody. my attorney says that if she signs off on how it's written up, we will both be considered the "primary" as well. parenting time is split right down the middle of the week.

 

[Ohiogal]

the mother and i have already agreed on joint physical and legal custody. my attorney says that if she signs off on how it's written up, we will both be considered the "primary" as well. parenting time is split right down the middle of the week.

Then you both have custody and your son will visit with/live with his brother while living with mom. YOU will NOT get court ordered visitation with him in a 50/50 time share. That seems to be what you are asking.

 

[BBQ Pope]

thank you. that's what i was wondering.

 

[CJane]

Where is the child's biologial father?

 

[LdiJ]

thank you. that's what i was wondering.

I will disagree slightly. You and mom can agree to just about anything you want in a stipulated agreement...so if she were to agree that you would get visitation in a stipulated agreement, it would/could be court ordered.

However, if she changes her mind later on down the road, a judge may not uphold that stipulated agreement. So, if she does agree and it does get made into a court order, you would need to be cognizant of your position. You would need to understand that you need to defer to mom as far as decision making is concerned, and that the child could never live with you, even if the child begged.

There are stepparents out there that get court ordered visitation rights in situations similar to yours, when the actual parent is fully in agreement. However, many of them make the mistake of believing that it makes them an equal parent, and end up doing something down the road that makes the actual parent regret the agreement...and then they lose the benefit of visitaton....whether it was a stipulation or just an informal agreement.

 

[Ohiogal]

I will disagree slightly. You and mom can agree to just about anything you want in a stipulated agreement...so if she were to agree that you would get visitation in a stipulated agreement, it would/could be court ordered.

NO it could not -- at least not in an ENFORCEABLE court order. The stepchild is NOT under the jurisdiction of the court. BOTH parents of the child would have to be served. What you are suggesting deprives the father of DUE PROCESS. You can't do it.

However, if she changes her mind later on down the road, a judge may not uphold that stipulated agreement. So, if she does agree and it does get made into a court order, you would need to be cognizant of your position. You would need to understand that you need to defer to mom as far as decision making is concerned, and that the child could never live with you, even if the child begged.

Again, the court does NOT have jurisdiction over the stepchild. Why are you suggesting something that is illegal and a violation of someone's due process?

There are stepparents out there that get court ordered visitation rights in situations similar to yours, when the actual parent is fully in agreement. However, many of them make the mistake of believing that it makes them an equal parent, and end up doing something down the road that makes the actual parent regret the agreement...and then they lose the benefit of visitaton....whether it was a stipulation or just an informal agreement.

And said orders are not enforceable OR legal unless BOTH parents of the child have been served and both parents' right to due process are preserved. So has stepdad served dad of the child? Is he suing BOTH parents for visitation of the stepchild? Not according to his post. Which means what you are suggesting is illegal, unenforceable and a violation of dad's rights.

 

[LdiJ]

NO it could not -- at least not in an ENFORCEABLE court order. The stepchild is NOT under the jurisdiction of the court. BOTH parents of the child would have to be served. What you are suggesting deprives the father of DUE PROCESS. You can't do it.



Again, the court does NOT have jurisdiction over the stepchild. Why are you suggesting something that is illegal and a violation of someone's due process?



And said orders are not enforceable OR legal unless BOTH parents of the child have been served and both parents' right to due process are preserved. So has stepdad served dad of the child? Is he suing BOTH parents for visitation of the stepchild? Not according to his post. Which means what you are suggesting is illegal, unenforceable and a violation of dad's rights.

In his first post the OP stated that he was the only father that the child had ever known, and the child is 12. Therefore there apparently is not a father to serve. He is also asking about visitation, not custody or adoption (as he already ruled adoption out).

Otherwise, I would not have given the advice that I gave.

 

[Ohiogal]

In his first post the OP stated that he was the only father that the child had ever known, and the child is 12. Therefore there apparently is not a father to serve. He is also asking about visitation, not custody or adoption (as he already ruled adoption out).

Otherwise, I would not have given the advice that I gave.

BULL.

i have been a father to my ex-wife's son since he was 18 months old... the only father he's ever known. he's now pushing 11 years.

There is a FATHER out there. LEGALLY. Just because he has been absent does NOT mean he is to be deprived of DUE process of law. There is a father to serve. it may end up being a JOHN DOE posting but it still needs to be done. And for visitation he would ALSO have to serve dad. The father has custodial rights that he can claim. For visitation the actual father (or putative father) has a right to be served and to have his rights protected.

What you posted was flat out wrong. We don't know if there is a father on the birth certificate or if paternity was even established but we know that THIS OP is NOT the daddy and there is a man out there who has the right to paternity (either to establish it or not) and this person is NOT it. The actual biological father has RIGHTS that are constitutionally protected. Just because it is NOT convenient does NOT mean you get to dance around it or IGNORE them.

And the DIVORCE COURT does NOT have jurisdiction over the stepchild.

 

[quincy]

Ohiogal, I disagree with something you said earlier. You said that BBQ Pope "will NOT get court ordered visitation with [the 11 year old boy] in a 50/50 timeshare." That is not necessarily true. He could. He could even be awarded custody.

A number of courts in Michigan (and elsewhere) now recognize that a stepparent is NOT a stranger, and that there is only a legal tie that separates many of them from being a full parent to a child. Even the Supreme Court in Smith v Organization of Foster Families for Equality and Reform recognized this when it said that "a family is not limited to blood, marriage or adoption."

Michigan courts have recognized since 1987 the "equitable parent doctrine." See Atkinson v Atkinson, 160 Mich App 601, 408 NW 2d 516 (1987). The courts have NOT, however, extended this doctrine outside of a marital relationship (ie. to unmarried partners).

In Atkinson, the Court said: " [W]e adopt the doctrine of 'equitable parent' and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of the child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce; (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support." (also see Mich Comp Laws 772.27 (1)(a) )

The decision in this case involved a child born AFTER the marriage but who was not the biological child of the husband. However, Michigan courts will recognize the equitable parent doctrine when there are children NOT born during the marriage but where the non-biological parent has taken on the role of parent to these children.

In addition, under 772.27 (1)(b), a court is allowed to grant visitation to ANY interested third party, if reasonable.

I agree with you that IF there is a biological father in the picture (BBQ certainly implied that there isn't, but he failed to answer CJane's question), then BBQ Pope may not be able to assert custody rights over the biological father's objections - absent a finding of abuse, neglect, dependency, unfitness or, in some Michigan courts, indifference - but third party visitation would still be a very real possibility. Also see Sinicropi v Mazurek, Mich Ct App (2006).

 

[Ohiogal]

Ohiogal, I disagree with something you said earlier. You said that BBQ Pope "will NOT get court ordered visitation with [the 11 year old boy] in a 50/50 timeshare." That is not necessarily true. He could. He could even be awarded custody.

Let me explain why you are incorrect -- this man IS NOT the legal father of the child and the legal father of the child NEEDS SERVED. He has due process rights. The divorce court cannot take jurisdiction over this child at this juncture unless dad -- the legal father -- agrees to the divorce court for this couple being in charge. In this context HE WILL NOT GET 50/50 custody or visitation from the divorce court in his divorce trial. The legal father NEEDS TO BE INVOLVED.

A number of courts in Michigan (and elsewhere) now recognize that a stepparent is NOT a stranger, and that there is only a legal tie that separates many of them from being a full parent to a child. Even the Supreme Court in Smith v Organization of Foster Families for Equality and Reform recognized this when it said that "a family is not limited to blood, marriage or adoption."

And that does NOT give this man LEGAL rights. Family is different emotionally than legal.

Michigan courts have recognized since 1987 the "equitable parent doctrine." See Atkinson v Atkinson, 160 Mich App 601, 408 NW 2d 516 (1987). The courts have NOT, however, extended this doctrine outside of a marital relationship (ie. to unmarried partners).

And that is possible with the equitable parent doctrine but DAD still needs served. The LEGAL father needs served. SIMPLE.

In Atkinson, the Court said: " [W]e adopt the doctrine of 'equitable parent' and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of the child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce; (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support." (also see Mich Comp Laws 772.27 (1)(a) )

In this case the child was NOT born or conceived during the marriage. Hence this case is not applicable.

The decision in this case involved a child born AFTER the marriage but who was not the biological child of the husband. However, Michigan courts will recognize the equitable parent doctrine when there are children NOT born during the marriage but where the non-biological parent has taken on the role of parent to these children.

And the BIOLOGICAL LEGAL FATHER of this child has rights that cannot be ignored. HE needs served. HE needs to be part of the process.

In addition, under 772.27 (1)(b), a court is allowed to grant visitation to ANY interested third party, if reasonable.

Not arguing that. I am arguing the fact that BOTH PARENTS NEED TO BE SERVED. Unless they are serving the LEGAL FATHER as part of the divorce it will not happen in the divorce court.

I agree with you that IF there is a biological father in the picture (BBQ certainly implied that there isn't, but he failed to answer CJane's question), then BBQ Pope may not be able to assert custody rights over the biological father's objections - absent a finding of abuse, neglect, dependency, unfitness or, in some Michigan courts, indifference - but third party visitation would still be a very real possibility. Also see Sinicropi v Mazurek, Mich Ct App (2006).

Regardless of whether dad is constantly in the picture, DAD needs served. That is the point. DAD has due process rights. If anything happens with the step child without the legal father being served, it is an illegal unenforceable order.

 

[quincy]

Atkinson v Atkinson DOES apply, and has been applied in all cases in Michigan involving non-biological children in a marriage, whether the children were born during the marriage or before the marriage (again, see Sinicropi v Mazurek and Raymond Charles Washburn v Wendy Renee Washburn - two out of many).

In Sinicropi, a case where the biological father's rights were terminated, the Court of Appeals said of parental rights: "The due process principles discussed in Santosky v Kramer derive from the liberty iinterests inherent in a parent's already established custodial relationship with a child. The United States Supreme Court has specifically rejected the notion that biological parenthood, standing alone, or even in conjunction with some additional relationship, suffices to establish a liberty interest." (bolding mine) See Michael H v Gerald D, 491 US 110 (1989).

I do agree that the biological father needs to be served, if he is available to be served. He could be dead - BBQ Pope never said. There is, however, a real question as to whether this biological father, if located, would be shown to have any liberty interest. The "legal" father may very well be determined to be the stepparent and not the biological dad.

In which case, BBQ Pope would not only have the opportunity for visitation rights with his 11 year old stepson, he could also get custody of his stepson. And a 50/50 timeshare would not be out of the question.

And one other note: Michigan courts will order the parenting time terms agreed upon by the parents, if the time terms are determined to be in the best interests of the child.

 

[LdiJ]

There is the possibility that the biological father is deceased. Its too bad the OP hasn't come back and cleared that issue up.