Pfeifer Column: Child Support and Adoption

By Jus­tice Paul E. Pfeifer

Unfor­tu­nately, it’s not at all uncom­mon for divorced par­ents to be delin­quent in their child sup­port pay­ments. And when that hap­pens there are con­se­quences, as demon­strated by a case that came before us – the Ohio Supreme Court – ear­lier this year.

The case involved a pre­vi­ously mar­ried cou­ple we’ll refer to as Ann R. and Stephen B., who dis­solved their mar­riage in 2000, while they were liv­ing in Florida. The court in Florida granted cus­tody of their daugh­ter – M.B. – to Ann, and ordered Stephen to pay $1,000 per month as sup­port. Ann got remar­ried in 2001 and even­tu­ally moved to Ohio.

Stephen made the pay­ments until Feb­ru­ary of 2007; then he stopped send­ing them. In Decem­ber 2007, Stephen sent M.B. a $125 gift card for Christ­mas and the fol­low­ing April he gave her $60 in cash for her birth­day. But no other sup­port pay­ments were made.

More than a year after Stephen stopped mak­ing child sup­port pay­ments, Ann’s hus­band, Thomas, filed a peti­tion in the Sum­mit County Pro­bate Court to adopt M.B. Thomas’s peti­tion alleged that Stephen had failed – with­out jus­ti­fi­able cause – to pro­vide for the main­te­nance and sup­port of M.B. for over a year, and there­fore Stephen’s con­sent to the adop­tion was not required.

Thomas’s alle­ga­tion was based on a pro­vi­sion in Ohio law we’ll call the “adop­tion con­sent” pro­vi­sion. That pro­vi­sion states that when some­one in Thomas’s posi­tion seeks to adopt a minor, he is not required to get the con­sent of the bio­log­i­cal par­ent when that par­ent has failed – with­out jus­ti­fi­able cause – to pro­vide for the “main­te­nance and sup­port of the minor as required by law or judi­cial decree for a period of at least one year imme­di­ately pre­ced­ing” the fil­ing of the adop­tion petition.

Stephen objected to the adop­tion. He denied that he had failed to pro­vide main­te­nance and sup­port for his daugh­ter in the pre­ced­ing year, point­ing out that he had given her both a Christ­mas gift and a birth­day gift. He also claimed that he had jus­ti­fi­able cause for fail­ing to pay his court-ordered child support.

But the pro­bate court deter­mined that the gifts did not con­sti­tute main­te­nance and sup­port, and that Stephen had failed, with­out jus­ti­fi­able cause, to pro­vide main­te­nance and sup­port for the year before the adop­tion peti­tion. There­fore, his con­sent was not needed for the adop­tion to proceed.

Stephen filed an appeal, argu­ing that the gifts he’d sent to M.B. did con­sti­tute main­te­nance and sup­port. The court of appeals ruled in his favor and reversed the deci­sion of the pro­bate court. The appel­late court agreed that the gifts con­sti­tuted sup­port, and con­cluded that the adop­tion of M.B. could not pro­ceed with­out Stephen’s consent.

The court of appeals wrote that, despite the lack of child sup­port pay­ments, Stephen’s “mon­e­tary gifts to M.B. evi­denced his intent not to aban­don his child.” Although the gifts were not sent as part of a judi­cial decree, the money served to “pro­vide addi­tional finan­cial sup­port for the ben­e­fit of the child. Accord­ingly, there was clear and con­vinc­ing evi­dence” that Stephen pro­vided for the main­te­nance and sup­port of M.B. by virtue of his two mon­e­tary gifts. Although his total finan­cial con­tri­bu­tion to M.B.’s “wel­fare was small, the tim­ing of the con­tri­bu­tions was thought­ful and clearly evi­denced his intent not to aban­don the child.”

After the court of appeals’ rul­ing, the case came before our court. The ques­tion put to us was this: When a bio­log­i­cal par­ent fails to pro­vide any court ordered child sup­port for one year, do small mon­e­tary gifts paid directly to the child con­sti­tute the pro­vi­sion of “main­te­nance and sup­port” of the minor as required by law or judi­cial decree?

Thomas main­tained that such gifts paid directly to a child do not con­sti­tute main­te­nance and sup­port in accor­dance with the adop­tion con­sent law. Stephen, on the other hand, argued that any finan­cial con­tri­bu­tion to a child con­sti­tutes main­te­nance and sup­port, and only the com­plete fail­ure to pro­vide main­te­nance and sup­port would ren­der the bio­log­i­cal parent’s con­sent to adop­tion unnecessary.

In pre­vi­ous cases, our court has con­cluded that the peti­tioner for adop­tion – Thomas in this case – has the bur­den of prov­ing, by clear and con­vinc­ing evi­dence, two things: first, that the nat­ural par­ent has failed to sup­port the child for the one-year period, and sec­ond, that this fail­ure was with­out jus­ti­fi­able cause.

Did Stephen fail to pro­vide for the main­te­nance and sup­port of his child? “Main­te­nance” and “sup­port,” although not specif­i­cally defined in the adop­tion con­sent law, gen­er­ally mean money and sus­te­nance given by one per­son to another. Neg­li­gi­ble mon­e­tary gifts – such as the ones Stephen sent to M.B. – do not con­sti­tute main­te­nance and sup­port, because they are not pay­ments “as required by law or judi­cial decree.”

Stephen con­ceded that he failed to make any of the required pay­ments in the year before Thomas filed the peti­tion to adopt M.B. Nev­er­the­less, he con­tended that by pro­vid­ing the gift card at Christ­mas and the cash on her birth­day, he pro­vided main­te­nance and sup­port dur­ing the req­ui­site year.

But, as Jus­tice Ter­rence O’Donnell noted in writ­ing our court’s opin­ion, “these gifts were nei­ther legally nor judi­cially required, and they rep­re­sent only a small por­tion of one monthly child-support oblig­a­tion and an even smaller por­tion of the annual oblig­a­tion. A gift is a vol­un­tary trans­fer of prop­erty to another made gra­tu­itously by a donor.”

The two gifts were min­i­mal; they did not con­sti­tute “main­te­nance and sup­port,” and they were not made in accor­dance to court order as the law requires. All of which means that Stephen failed to pro­vide main­te­nance and sup­port to M.B. as required by law or judi­cial decree for the year pre­ced­ing the fil­ing of the adop­tion peti­tion. And because the gifts did not con­sti­tute main­te­nance and sup­port, the adop­tion could pro­ceed with­out Stephen’s consent.

By a seven-to-zero vote, we reversed the judg­ment of the court of appeals and rein­stated the judg­ment of the pro­bate court.

EDITOR’S NOTE: The case referred to is: In re Adop­tion of M.B., 131 Ohio St.3d 186, 2012-Ohio-236. Case No. 2011–0831. Decided Jan­u­ary 25, 2012. Major­ity opin­ion writ­ten by Jus­tice Ter­rence O’Donnell.

Posted by Paul Pfeifer on Jun 14 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.