Bikos v. Nobliski

• Decision Date: 16 January 1979
• Docket Number: Docket No. 78-28
• Citation: 88 Mich.App. 157,276 N.W.2d 541
• Parties: Florence BIKOS, Plaintiff-Appellee, v. Michael NOBLISKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 541

276 N.W.2d 541

88 Mich.App. 157

Florence BIKOS, Plaintiff-Appellee, v. Michael NOBLISKI, Defendant-Appellant.

Docket No. 78-28.

Court of Appeals of Michigan.

Jan. 16, 1979.

Released for Publication March 29, 1979.

John D. Lazar, Hazel Park, for defendant-appellant.

Merrill, Tatham & Rosati by Charles H. Tatham, Southfield, for plaintiff-appellee.

Before ALLEN, P. J., and MAHER and TOWNSEND, JJ. ^*

ALLEN, Presiding Judge.

What effect does the adoption of a child have on the child's grandparent's suit to secure court-enforced visitation with the child pursuant to the grandparent visitation statute, M.C.L. § 722.27a; M.S.A. § 25.312(7a)? On this issue of first impression the lower court concluded that a grandparent could maintain an action for visitation under the statute, after adoption. We reverse.

Deborah Nobliski, born July 16, 1970, and Richard Nobliski, born June 16, 1972, were the two children born to defendant and Antoinette Nobliski during their marriage. In April, 1975, Antoinette Nobliski died. Antoinette was the daughter of plaintiff. Defendant married his present wife, Sarah, in July, 1975, and she formally adopted defendant's two children in September, 1976. Defendant always maintained custody of the two children except for a time prior to their natural mother's death when she and defendant were separated. Antoinette Nobliski had primary custody of the children at that time.

After the death of Antoinette Nobliski, plaintiff grandmother demanded visitation with the children. Attempts were made to allow visitation, but defendant and Sarah Nobliski, the stepmother, felt the plaintiff was creating divisiveness in their family, undermining their authority over the children and confusing and harming the children. Plaintiff commenced suit under M.C.L. § 722.27a; M.S.A. § 25.312(7a), and claimed her visitations were being interfered with. She never contended that defendant and his wife ever inadequately cared for the children. The court granted her temporary limited visitation. The children later underwent psychiatric examinations resulting in recommendations that if there were to be visitation, then it should take place in the home environment of the children and be limited to two hours per month. After concluding that plaintiff's suit was brought properly, the lower court held a hearing to determine what visitation, if any, was in the best interests of the children. At the close of the hearing on November 17, 1977, the court ordered visitation for a two-hour period at defendant's home on the third Saturday or Sunday of each month for three months, and thereafter the court ordered visitation for at least four hours per month away from defendant's home.

Defendant, as surviving parent and natural father of the children, contends the lower court erred in concluding that adoption of the children did not terminate plaintiff's cause of action under the grandparent-visitation statute. Defendant also contends that, even if the plaintiff's grandparent-visitation suit survived the adoption, the court's decision that grandparent visitation was in the best interest of the children was clearly erroneous and against the great weight of the evidence.

The grandparent visitation statute was added to the Child Custody Act of 1970 by 1971 P.A. 80. The statute provides:

"If either the father or mother of an unmarried child is deceased, a parent of the deceased person may commence an action, by complaint or complaint and motion for an order to show cause, in the circuit court of the county in which the child resides for visitation of the child during its minority. If the court finds that such visitation would be in the best interests of the child, it may provide for visitation of the child by general or specific terms and conditions." M.C.L. § 722.27a; M.S.A. § 25.312(7a).

The only case in which this Court considered the statute was Kernozek v. Hershey, 46 Mich.App. 393, 208 N.W.2d 242 (1973). In Kernozek, where a denial of the grandparents' request for visitation was affirmed, adoption of the children was not an issue. Also important in this case is the effect of subsection 1 of § 60 of the Adoption Code, M.C.L. § 710.60; M.S.A. § 27.3178(555.60):

"(1) After the entry of the order of adoption, the adoptee shall, in case of a change of name, be known and called by the new name. The person or persons adopting the adoptee shall thereafter Stand in the place of a parent or parents to the adoptee in law In all respects as though the adopted person had been born to the adopting parents and shall thereafter be liable for all the duties and entitled to all the rights of parents." (Emphasis supplied.)

Subsection 2 of this statute primarily deals with an adopted person's rights as an heir. ¹ The effect-of-adoption statute was amended in 1974, as part of an extensive revision of the Michigan Adoption Code. 1974 P.A. 296. Upon amendment, the Legislature divided the statute into two subsections and eliminated an adopted person's status as an heir of the natural parents after adoption.

In the case before us, the lower court reasoned that the Legislature must have foreseen a situation such as the instant one, Viz : where an adopting parent and the remaining natural parent desire to exclude the parents of the deceased natural parent. The lower court concluded that if the Legislature intended to exempt such cases from the ambit of the grandparent-visitation statute, it would have done so expressly.

As noted by the lower court, this same reasoning was employed by a New York intermediate appellate court in Scranton v. Hutter, 40 A.D.2d 296, 339 N.Y.S.2d 708 (1973). In that case the New York court held that the natural, maternal grandparents could maintain an action under New York's grandparent-visitation statute despite the adoption of the children by the stepmother, and remanded for a hearing on the best interests of the children. The New York grandparent-visitation statute is essentially the same as Michigan's. ² However, New York's effect-of-adoption statute ³ has a focus different from Michigan's. The New York statute focuses on descent and succession. The Scranton court quoted part of the statute and described it as follows:

"Section 117 of the Domestic Relations Law, which defines the effect of adoption upon natural and adoptive family ties, is comparable to section 257 of the California Probate Code. It states in part (subd. 2): 'This section shall apply only to the intestate descent and distribution of real property' and is thus essentially a succession statute as is section 257 of the California Probate Code." ⁴ 40 A.D.2d at 299, 339 N.Y.S.2d at 711.

The Michigan effect-of-adoption statute focuses on more than just succession. Inheritance and succession are primarily covered in subsection 2 of the statute. Subsection 1, quoted earlier, focuses on the rights and status of the adopting parent or parents, as well as of the adoptee. The effect of the statute is to make the adopted child as much as possible a natural child of the adopting parents, and to make the adopting parents as much as possible the natural parents of the child. The statute specifically provides that the adopting parents "stand in the place of a parent * * * in all respects as though the adopted person had been born to the adopting parents" and are "entitled to all the rights of parents". Language as specific as this does not appear in the New York or California statutes. But in Michigan, adoption must be preceded by the release or termination of parental rights with respect to any living natural parent who is not the spouse of the adopting parent. M.C.L. §§ 710.28, 710.29, 710.36, 710.37, 710.41, 710.51; M.S.A. §§ 27.3178(555.28), 27.3178(555.29), 27.3178(555.36), 27.3178(555.37), 27.3178(555.41), 27.3178(555.51).

Our reading of the grandparent-visitation statute in conjunction with the effect-of-adoption statute leads us to conclude that once the stepparent adopts the child, the grandparent-visitation statute ceases to apply. The Legislature did not have to expressly exempt adoption situations, as the lower court concluded, if it did not want the visitation statute to apply to cases such as the one at bar. The interplay of the Michigan adoption and visitation statutes already accomplishes this.

Under the visitation statute a grandparent may request visitation where the grandchild's parent (the grandparent's child) is deceased. But once a child is adopted, the child has a parent. The adopting parent becomes the natural parent of the child "in law in all respects". Hence the condition of the visitation statute that the child's parent be deceased is not present as a matter of law, and the natural grandparent has no standing under the statute.

This conclusion requires no sophisticated legerdemain. It follows from a straightforward reading of the statutes involved. To reach the opposite result, urged by plaintiff, would lead to some unusual situations which we doubt the Legislature intended. First of all, a grandchild could easily end up with three sets of grandparents. If both natural parents died this could result in four sets of grandparents. Second, if a child is adopted through a social agency, and the natural mother or father, or both, later died, then the parent of the natural parent could request visitation under the statute. Since neither the effect-of-adoption statute nor the grandparent-visitation statute is limited to situations where one natural parent retains custody, this result is possible under plaintiff's position.

Third, the surviving parent and the adopting parent could exclude either or both of their own parents at will, but could not do so as to the parents of the deceased spouse. This further leads to the fact that the adopting parent would not have the right to preclude certain persons (the natural grandparents) from visitation as did the natural parent. And this is directly contrary to the intent of the...