By Marian L. Faupel
FAUPEL, FRASER & FESSLER
Ann Arbor, MI
2010
More and more, children are born outside wedlock. If the mother agrees to put the father's name on the birth certificate while she is still in the hospital, then the biological father becomes the child's "legal father," and he then has the right to visit and perhaps to have legal custody. He also has the legal obligation to support the child.
If the mother leaves the hospital without putting the father's name on the birth certificate, she can still recognize the biological father as the child's "legal father" by signing an affidavit of parentage and having the father do the same. This document has to be notarized. By signing the document, the father waives the right to paternity testing. Notably, underage parents are eligible to sign this affidavit.
MCLA 722.1005 permits a parent to file the affidavit of parentage with the state registrar. While a party could then request a new birth certificate (which would make the father's identity known to anyone seeing the birth certificate), this is not necessary. There is a problem, however, if nothing else occurs other than the execution of an affidavit of parentage. For example, MCLA 722.1006 provides: "After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time." Since the mother has full legal and physical custody of the child until a court orders otherwise, she is free to place the child with third parties under a power of attorney, and the biological father could not prevent her from leaving the jurisdiction or area altogether without his knowledge and consent.
An affidavit or acknowledgment of paternity can be the basis for court ordered child support, custody, or parenting time without litigating the paternity issue under the paternity act. If the parties later dispute the paternity of the father, there is a legal process available for revoking the affidavit.
MCLA 333.2831 permits a parent to request a new birth certificate for the child by submitting evidence to the Department of Health that confirms paternity. An affidavit of parentage, signed by both parents, satisfies this requirement.
If a mother refuses to put the father's name on the birth certificate and also refuses to sign an affidavit of parentage, a biological father can file a complaint for paternity under the paternity act, MCLA 722.711 et seq. If DNA testing confirms his paternity, then the court will enter an order of filiation, effectively acknowledging the biological father as the "legal father" of the child. The same court can then award support, custody, and parenting time. The problem with this approach (beyond the cost and acrimony that results) is the fact the child support can be awarded retroactively to the birth of the child, and the father can be held responsible for all or part of the costs of delivery of the child. If an order of filiation is entered by the court, then the father can send that to the state registrar and request amendment of the child's birth certificate.
There are at least two reasons a father would pursue his right to be recognized as a legal father of the child. First, he has no right to spend time with the child if he is not the legal father. Second, the mother can abduct the child, and he will have no legal recourse. Third, the mother can place the child for adoption, and the father's right to contest the adoption will be very limited. In fact, he will be considered a "putative father" of the child, and his rights can be easily terminated if he has not provided substantial child support to the mother during her pregnancy and/or support to the child within 90 days of the child's birth and/or formed a relationship to the child himself. If this is the case, the father is considered a "do nothing" father under MCLA 710.39(2), and then his rights can be terminated if an adoption is in the best interests of the child.
Finally, the biological father faces major problems if a child is conceived while the mother is married to someone else. In Michigan, a child born during a marriage is presumed to be the child of the mother and her husband, even if this is not biologically so. If the mother and her husband do not dispute the paternity of the child and do not want the biological father involved in the child's life, then the biological father cannot become the child's legal father. If, on the other hand, the husband disputes his paternity and in a later divorce, the court finds that the husband actually is not the father of the child, then the biological father can become the legal father through a paternity action or an affidavit of paternity signed by himself and the mother.
Many pregnancies are unplanned, and the last thing people are thinking about as they procreate is finding a good attorney. Unfortunately, if the mother of the child does not welcome the father's involvement and will not consent to putting him on the birth certificate or signing an affidavit of parentage, the father must go to court or go away.
