Sibling Visitation Question

[Ohiogal]

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.

I appreciate the case law. My major issue as to the entire thread was the fact that the biological legal father (he is both in this case) NEEDS served and unless served then no orders that are made regarding the stepson are enforceable or constitutional. That was my major point. It is possible for him to get visitation and, if both legal parents are unfit or unsuitable, custody BUT BOTH LEGAL PARENTS NEED SERVED. Including the legal father.

 

[quincy]

I agree, Ohiogal, that the biological father needs to be served IF the biological father can be located to be served notice. It would be nice to know what, exactly, the biological father's involvement, if any, has been with the child or if he is dead. Those facts could make a big difference! I wonder if BBQ Pope will return to clear that up?

But, even if the biological dad is not dead and he is the "presumed father" because he was married to the biological mom either before the birth or after the birth and/or his name is on the birth certificate and/or there is a court order in place ordering child support, if he has had no contact with the boy for a year or he has not paid any support for a year, a court could determine that he has abandonned the child.

And, if he has not paid any support or had any contact for two years, Michigan law allows for the biological mom and the stepfather to have a probate court terminate the biological dad's parental rights (whether the biological dad agrees or not). Consent is not required.

Although the biological dad is entitled to notice, if he cannot be found then his parental rights can still be involuntarily terminated, should the above no contact/no support conditions apply.

 

[wileybunch]

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).

Do these cases distinguish between a biological parent vs. a biological parent with legal custody?

 

[Ohiogal]

I agree, Ohiogal, that the biological father needs to be served IF the biological father can be located to be served notice. It would be nice to know what, exactly, the biological father's involvement, if any, has been with the child or if he is dead. Those facts could make a big difference! I wonder if BBQ Pope will return to clear that up?

The bolded is WRONG. He would still need to be served by way of posting or publication.

But, even if the biological dad is not dead and he is the "presumed father" because he was married to the biological mom either before the birth or after the birth and/or his name is on the birth certificate and/or there is a court order in place ordering child support, if he has had no contact with the boy for a year or he has not paid any support for a year, a court could determine that he has abandonned the child.

Yet we do not know that.

And, if he has not paid any support or had any contact for two years, Michigan law allows for the biological mom and the stepfather to have a probate court terminate the biological dad's parental rights (whether the biological dad agrees or not). Consent is not required.

Except for the fact that stepfather and mom are divorcing. In this area of the forum the terms BIOLOGICAL FATHER or BIOLOGICAL MOTHER are not used unless an adoption has taken place or rights have been terminated.

Although the biological dad is entitled to notice, if he cannot be found then his parental rights can still be involuntarily terminated, should the above no contact/no support conditions apply.

Wrong. He still needs served -- if only by publication or posting.

 

[quincy]

You are right, Ohiogal. I misspoke. A notice would need to be posted if the father of the child cannot be located - unless he is dead, which would certainly simplify matters.

Wileybunch, the Michigan cases tend to be all over the board, but the fact that any sort of legal relationship exists in any form has certainly factored into the decisions - however, that has not always been the deciding factor.

In some of the cases I cited, the child was born before any marriage to a non-biological dad, and in some cases the parties filed an affidavit of parentage after the marriage and changed the birth certificate.

In Atkinson, the child was born during the marriage, so the non-biological father was the "presumed father." Atkinson is the case that the Michigan courts look to most often when deciding whether the equitable parent doctrine can apply. Given the least weight in many courts is the Atkinson "a child born or conceived during the marriage."

The Michigan Supreme Court said in one case (I lost my notes but I think it was In re: KH, KI, KL and KJ): "Copetitioner would note that the term 'putative father' seems to imply that the reputed potential biological father is 'a father.' He is not. Perhaps 'potential male progenitor' would be a better term and not imply any rights which can accompany fatherhood."

The only cases in Michigan where the equitable parent doctrine has NOT applied is where there has been no marriage between the partners, although the non-biological parent in these cases could still be granted visitation rights as a third party.

One of my favorite judge comments, that illustrates nicely the difficulties in family law cases (and one reason why I prefer defamation), was said in a Michigan Supreme Court case, In re: KH, KI, KL and KJ, Minors v Supreme Court.

The judge said: "...copetitioner would note that his foray into the worlds of 'legal fathers,' 'biological fathers,' 'natural fathers,' 'presumed fathers,' 'putative fathers,' 'equitable fathers,' along with the Juvenile Code, the Divorce Act, the Support and Visitation Enforcement Act, the Child Custody Act, the Adoption Code, the Paternity Act, the Acknowledgement of Parentage Act, and the intestate successive laws, along with the Michigan Court Rules, left copetitioner feeling a lot like Lou Costello in the famous 'Who's on First' act, often repeating 'I don't know.' 'Third base.'"

Ohiogal, I feel like that judge when posting here, so excuse my uses of "biological" when it should not be used.