June 6, 2012
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.