By Marian L. Faupel
FAUPEL, FRASER & FESSLER
Ann Arbor, MI
2010
When a child is born and both parents are in the hospital (or the mother agrees), the father's name can be placed on the child's birth certificate.
If the father's name is not on the birth certificate and the mother will not agree to put the name on the birth certificate, the father can file a paternity action under 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. Because the court does DNA testing, there is almost no chance that the wrong person will become the legal father.
The third way to become a legal father is to have both parents execute an affidavit of parentage under MCLA 722.1005. This does not require DNA testing, and sometimes the wrong father becomes the legal father.
If a child is born during a marriage but is not the biological child of the husband, the courts for a long time considered the husband to be the legal father, regardless of whether he was the biological father or not. The divorce statute, in fact, provides:
[t]he legitimacy of all children begotten before the commencement of any action under this act shall be presumed until the contrary be shown.
In addition, MCL 700.2114(1)(a) provides: "If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for the purposes of intestate succession." The Vital Records Act, at MCL 333.2824(1), provides: "The name of the husband at the time of conception or, if none, the husband at birth shall be registered as the father of the child" on the birth certificate. And
MCL 333.2824(6) provides: "A child conceived by a married woman with the consent of her husband following the utilization of assisted reproductive technology is considered to be the legitimate child of the husband and wife." There is a presumption that a husband is, and wants to be, legal father of a child conceived during a marriage.
If, however, the husband wants to avoid child support issues at the time of the divorce, he will probably be permitted to contest paternity. If, on the other hand, the husband wants to continue his relationship to a child that was born during the marriage but not biologically his, he can assert the equitable parent doctrine set forth in Van v Zahorik, 460 Mich 320 (1999). Under the equitable parent doctrine applies if:
1. the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to filing the complaint for divorce;
2. the husband desires to have rights afforded to a parent, and
3. the husband is willing to take on the responsibility of paying child support.
While there is a way for a man to try and continue his relationship to children born during a marriage but not biologically his, there are major problems for biological fathers who want a relationship to their children if the child is born during the woman's marriage to another man or if an acknowledgement of paternity was signed based on a mistake of fact. There are solutions to some of these problems (some of the time), but they are not easy ones.
Under MCLA 722.1011, the mother, the man who signed an acknowledgment of parentage, the child who is the subject of the acknowledgment, or a prosecuting attorney may file a claim for revocation of an acknowledgment of parentage based on "mistake of fact." This statute does not permit another man to intervene. Only the parties named above can "initiate" the revocation. At that point, DNA testing would be done. See Bay County Prosecutor v Nugent, 276 Mich App 183 (2007). All of this means that if an affidavit of paternity has been signed by the mother and the presumed father, and if another man has proof positive that he is the biological father of the child, he still cannot get the affidavit of paternity revoked by himself.
Further, in Girard v Wagernmaker, 437 Mich 231 (1991), the Michigan Supreme Court held that paternity cannot be challenged by a biological father after a woman divorces her husband unless there was a prior proceeding involving the husband (the "legal father" of the child) and the wife where paternity was contested. That means that even if Alice conceived a child with Joe while married to Bill (and everyone knows it), and if Alice and Bill divorce but do not contest paternity in some form of "prior proceeding" involving the two of them (like the divorce itself), there is no way that Joe can become the child's "legal father." In fact, a child can only have one legal father at a time.
In the end, if a child is conceived while a woman is married to someone else, there are major hurdles to overcome if the biological father wants to obtain or assert parental rights over the husband's objection. If the woman was not married when the child was conceived, and the child was born outside wedlock, there is a mechanism for becoming a legal father. The biological father can ask the mother to put him on the birth certificate. He can file a complaint for paternity and obtain an order of filiation after DNA testing is done. Or he and the mother can sign an affidavit of parentage. The problem is revoking the affidavit of parentage if a "mistake of fact" is later discovered. The biological father does not have "standing" to initiate this process.
Obviously, this is a complicated area of the law, and a competent attorney should be consulted if there is a desire to establish paternity or revoke it.
