You have requested our assistance in determining whether Jenna A. R~ is entitled to
child's insurance benefits on Timothy R~'s account as Timothy's equitably adopted
child. Jenna A. F~ (R~) was born to Patti A. C~ (R~) and James V. F~ on October 3,
1979. Although the couple was not married, James signed Jenna's birth certificate
as her father. There is no evidence regarding the extent of James' and Jenna's ongoing
relationship, if any. On August 23, 1989, Patti A. married Timothy R~. Patti A. alleged
that the R~'s began adoption proceedings, but that the adoption was not completed
prior to Timothy's death on March 3, 1990, because the R~'s were having difficulty
locating James. Jenna is now claiming benefits on Timothy's account as his equitably
adopted child.
You have apparently determined that the requisite contract to adopt Jenna exists,
as you asked only whether there was sufficient surrender of custody pursuant to POMS
GN 00306.200. This provision provides that "[t]here must be a complete and absolute surrender
of the custody and control of the child to the adopting parents pursuant to the contract
of adoption. To meet this requirement: The agreement must not give the person or agency
placing the child the authority to regain custody . . . and . . . The person or agency
placing the child must not retain the right to exercise control and supervision over
the child." You noted that a legal opinion dated October 21, 1966, indicated that
Michigan law in effect at that time did not require consent of the biological father
to effectuate the adoption of a child born out of wedlock.
Under current Michigan law, however, the adoption of a child born out of wedlock requires
the consent of the biological father unless the father's rights have been terminated.
M.C.L.A. § 710.31(1). This holds true even when the individual attempting adoption
is married to the child's natural mother. M.C.L.A. §§ 710.36(1), 710.43(1)(a)(i),(8).
If the biological father's consent cannot be obtained, a hearing must be held to determine
or terminate the father's rights before the adoption can occur. M.C.L.A. § 710.36(1).
If the father's whereabouts are unknown, a court of competent jurisdiction can terminate
the father's rights if a reasonable attempt has been made to locate the father and
if the father has not provided support for the mother and child or shown other interest
in the child for at least ninety days preceding the hearing. M.C.L.A. § 710.37(2).
Thus, Timothy needed to obtain either James' consent to the adoption or a court order
terminating James' parental rights before Timothy could adopt Jenna. In the absence
of either of these actions, James' retains the legal right to regain custody of Jenna
and has not adequately surrendered the child for adoption. POMS GN 00306.200(A).
For the foregoing reasons, we conclude that Jenna cannot be considered the equitably
adopted child of Timothy.