PROBATE CODE OF 1939
Act 288 of 1939
710.45 Withholding of consent by representative or court; motion by petitioner; decision by court; termination of rights; entering orders; appeal.
Sec. 45.
(1) A court shall not allow the filing of a petition to adopt a child if the consent of a representative or court is required by section 43(1)(b), (c), or (d) of this chapter unless the petition is accompanied by the required consent or a motion as provided in subsection (2).
(2) If an adoption petitioner has been unable to obtain the consent required by section 43(1)(b), (c), or (d) of this chapter, the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following:
(a) The specific steps taken by the petitioner to obtain the consent required and the results, if any.
(b) The specific reasons why the petitioner believes the decision to withhold consent was arbitrary and capricious.
(3) If consent has been given to another petitioner and if the child has been placed with that other petitioner according to an order under section 51 of this chapter, a motion under this section shall not be brought after either of the following:
(a) Fifty-six days following the entry of the order placing the child.
(b) Entry of an order of adoption.
(4) In an adoption proceeding in which there is more than 1 applicant, the petition for adoption shall be filed with the court of the county where the parent's parental rights were terminated or are pending termination. If both parents' parental rights were terminated at different times and in different courts, a petition filed under this section shall be filed in the court of the county where parental rights were first terminated.
(5) The court shall provide notice of a motion brought under this section to all interested parties as described in section 24a(1) of this chapter, the guardian ad litem of the prospective adoptee if one has been appointed during a child protection proceeding, and the applicant who received consent to adopt.
(6) Upon the filing of a petition to adopt a child and the motion described in subsection (2), the court may waive or modify the full investigation of the petition provided in section 46 of this chapter. The court shall decide the motion within 91 days after the filing of the motion unless good cause is shown.
(7) Unless the petitioner establishes by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall deny the motion described in subsection (2) and dismiss the petition to adopt.
(8) If the court finds by clear and convincing evidence that the decision to withhold consent was arbitrary and capricious, the court shall issue a written decision and may terminate the rights of the appropriate court, child placing agency, or department and may enter further orders in accordance with this chapter or section 18 of chapter XIIA as the court considers appropriate. In addition, the court may grant to the petitioner reimbursement for petitioner's costs of preparing, filing, and arguing the motion alleging the withholding of consent was arbitrary and capricious, including a reasonable allowance for attorney fees.
(9) If the consent at issue is that required of the court under section 43(1)(c) of this chapter, the motion shall be heard by a visiting judge assigned according to section 8212 of the revised judicature act of 1961, 1961 PA 236, MCL 600.8212.
(10) The court's decision on a motion brought under this section is appealable by right to the court of appeals.
History: Add. 1982, Act 72, Imd. Eff. Apr. 14, 1982 ;-- Am. 1994, Act 239, Eff. July 5, 1994 ;-- Am. 1996, Act 409, Eff. Jan. 1, 1998 ;-- Am. 2004, Act 486, Imd. Eff. Dec. 28, 2004
PopularName Notes:
Probate Code
Notes of Decisions
Cited in
30
cases (
5 in the last 5 years), 1994–2025 · leading case:
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
· cites it 16× “See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify.”
Smith v. Oakland Cnty. Circuit Court, 344 F. Supp. 2d 1030 (E.D. Mich. 2004).
· cites it 11× “§ 710.45 is unconstitutional on its face and/or as applied, and that, based upon that declaration, the April 18, 2003 Order will be overturned.”
In re Keast, 278 Mich. App. 415 (Mich. Ct. App. 2008).
· cites it 9× “Pursuant to MCL 710.45, a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent…”
In Re Keast, 750 N.W.2d 643 (Mich. Ct. App. 2008).
· cites it 9× “279834 The DHS first argues that the family court erred in finding clear and convincing evidence that the MCI superintendent acted arbitrarily and capriciously in denying the Atwoods consent to adopt.”
In re COH, 848 N.W.2d 107 (Mich. 2014).
“Scribner filed a motion with the trial court under MCL 710.45(2), alleging that the superintendent’s decision was arbitrary and capricious.”
In Re Cotton, 526 N.W.2d 601 (Mich. Ct. App. 1994).
“Judicial review of the withholding of consent to an adoption is governed by MCL 710.45; MSA 27.3178(555.45). Under subsection 1, a person who has filed a petition to adopt may move in the court for a determination whether the withholding of consent to adopt is arbitrary and…”
in Re Wjh, Amh Minors (Mich. Ct. App. 2018).
· cites it 12× “The court noted that MCL 710.45 provides a detailed procedure for an aggrieved party to challenge the denial of consent to adopt, which petitioner did not follow.”
in Re Tjb, Djb Minors (Mich. Ct. App. 2016).
· cites it 11× “Although this Court ruled that an L-GAL is not an interested party in an adoption proceeding, and that an L-GAL cannot intervene as a party in proceedings under MCL 710.45, it reasoned that an L-GAL is not completely prohibited from participating in motion hearings under MCL 710.”
in Re Asf Minor (Mich. Ct. App. 2015).
· cites it 16× “After the superintendent denied consent to the adoption, under MCL 710.45, petitioners then filed a motion in circuit court challenging the superintendent’s decision.”
in Re Rc Minor (Mich. Ct. App. 2019).
· cites it 8× “The trial court’s review of the superintendent’s decision was limited by MCL 710.45, under which “a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear…”
in Re Cl Minor (Mich. Ct. App. 2016).
· cites it 7× “” Nevertheless, the court stated that these were credibility determinations that it should not revisit.”
in Re Caw, Edgw Minors (Mich. Ct. App. 2017).
· cites it 7× “FACTS AND PROCEEDINGS Petitioners are the maternal grandmother and step-grandfather of the two minor children.”
— Mich. Comp. Laws § 710.45(1) — 1 case
— Mich. Comp. Laws § 710.45(10) — 2 cases
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
“See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify.”
in Re Asf Minor (Mich. Ct. App. 2015).
“After the superintendent denied consent to the adoption, under MCL 710.45, petitioners then filed a motion in circuit court challenging the superintendent’s decision.”
— Mich. Comp. Laws § 710.45(2) — 21 cases
In re Keast, 278 Mich. App. 415 (Mich. Ct. App. 2008).
“Pursuant to MCL 710.45, a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent…”
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
“See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify.”
In re COH, 848 N.W.2d 107 (Mich. 2014).
“Scribner filed a motion with the trial court under MCL 710.45(2), alleging that the superintendent’s decision was arbitrary and capricious.”
In Re Keast, 750 N.W.2d 643 (Mich. Ct. App. 2008).
“279834 The DHS first argues that the family court erred in finding clear and convincing evidence that the MCI superintendent acted arbitrarily and capriciously in denying the Atwoods consent to adopt.”
— Mich. Comp. Laws § 710.45(3) — 1 case
in Re Wjh, Amh Minors (Mich. Ct. App. 2018).
“The court noted that MCL 710.45 provides a detailed procedure for an aggrieved party to challenge the denial of consent to adopt, which petitioner did not follow.”
— Mich. Comp. Laws § 710.45(3)(a) — 1 case
in Re Wjh, Amh Minors (Mich. Ct. App. 2018).
“The court noted that MCL 710.45 provides a detailed procedure for an aggrieved party to challenge the denial of consent to adopt, which petitioner did not follow.”
— Mich. Comp. Laws § 710.45(5) — 7 cases
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
“See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify.”
Smith v. Oakland Cnty. Circuit Court, 344 F. Supp. 2d 1030 (E.D. Mich. 2004).
“§ 710.45 is unconstitutional on its face and/or as applied, and that, based upon that declaration, the April 18, 2003 Order will be overturned.”
In Re Keast, 750 N.W.2d 643 (Mich. Ct. App. 2008).
“279834 The DHS first argues that the family court erred in finding clear and convincing evidence that the MCI superintendent acted arbitrarily and capriciously in denying the Atwoods consent to adopt.”
in Re Asf Minor (Mich. Ct. App. 2015).
“After the superintendent denied consent to the adoption, under MCL 710.45, petitioners then filed a motion in circuit court challenging the superintendent’s decision.”
in Re Cl Minor (Mich. Ct. App. 2016).
“” Nevertheless, the court stated that these were credibility determinations that it should not revisit.”
— Mich. Comp. Laws § 710.45(6) — 3 cases
In Re Keast, 750 N.W.2d 643 (Mich. Ct. App. 2008).
“279834 The DHS first argues that the family court erred in finding clear and convincing evidence that the MCI superintendent acted arbitrarily and capriciously in denying the Atwoods consent to adopt.”
in Re Rc Minor (Mich. Ct. App. 2019).
“The trial court’s review of the superintendent’s decision was limited by MCL 710.45, under which “a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear…”
— Mich. Comp. Laws § 710.45(7) — 13 cases
In re ASF, 876 N.W.2d 253 (Mich. Ct. App. 2015).
“See MCL 710.45. The circuit court conducted a § 45 hearing at which petitioners testified and called the MCI superintendent to testify.”
In re Keast, 278 Mich. App. 415 (Mich. Ct. App. 2008).
“Pursuant to MCL 710.45, a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent…”
Smith v. Oakland Cnty. Circuit Court, 344 F. Supp. 2d 1030 (E.D. Mich. 2004).
“§ 710.45 is unconstitutional on its face and/or as applied, and that, based upon that declaration, the April 18, 2003 Order will be overturned.”
in Re Tjb, Djb Minors (Mich. Ct. App. 2016).
“Although this Court ruled that an L-GAL is not an interested party in an adoption proceeding, and that an L-GAL cannot intervene as a party in proceedings under MCL 710.45, it reasoned that an L-GAL is not completely prohibited from participating in motion hearings under MCL 710.”
— Mich. Comp. Laws § 710.45(8) — 2 cases
In re Keast, 278 Mich. App. 415 (Mich. Ct. App. 2008).
“Pursuant to MCL 710.45, a family court’s review of the superintendent’s decision to withhold consent to adopt a state ward is limited to determining whether the adoption petitioner has established clear and convincing evidence that the MCI superintendent’s withholding of consent…”
In Re Keast, 750 N.W.2d 643 (Mich. Ct. App. 2008).
“279834 The DHS first argues that the family court erred in finding clear and convincing evidence that the MCI superintendent acted arbitrarily and capriciously in denying the Atwoods consent to adopt.”
— Mich. Comp. Laws § 710.45(g) — 1 case
Smith v. Oakland Cnty. Circuit Court, 344 F. Supp. 2d 1030 (E.D. Mich. 2004).
“§ 710.45 is unconstitutional on its face and/or as applied, and that, based upon that declaration, the April 18, 2003 Order will be overturned.”
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