Paternity Law In Michigan

What is paternity?


         In Michigan, paternity is a word that simply means that a male is the father of a certain child. There are advantages for both the father and mother in proving a man is the father of the child. A father who has paternity over a child has the right to ask for custody, parenting time, and child support from the child’s mother. He has the right to attend any hearing terminating his parental rights over the child, and if he is involved in the child’s life, he has the right to refuse the mother’s choice to give the child up for adoption. A mother may want to establish a man’s paternity over a child because that means she could require the father to pay child support, medical expenses incurred during childbirth, and other financial support. Of course, there are also advantages for the child in knowing who the father is: the child will feel a sense of belonging and have a better idea of his or her medical history. There is strong public policy that favors determining the paternity of children in Michigan, including in Oakland County, Macomb County, and Livingston County.

How is paternity established?

     The first step is to determine whether the child’s mother was married at the time the child was conceived or born:

      If the mother WAS married at the time the child was conceived or born:
In this situation, the mother’s husband is presumed to be the father of the child unless the court has decided differently.

     If the mother WAS NOT married at the time the child was conceived or born:
     This is where establishing paternity can get difficult. The analysis depends on whether the father and mother agree that he is the father.

Paternity laws in Michigan

If both parents AGREE that he is the father of the child:
If both the mother and father agree that he is the father of the child, they would both fill out and sign a form called an "Affidavit of Parentage." An Affidavit of Parentage essentially allows the father to voluntarily agree to assume all the rights and responsibilities that come with the paternity of a child. If the Affidavit of Parentage is filled out at the hospital, the father’s name will automatically be entered on the baby’s birth certificate. However, the Affidavit of Parentage can be filled out any time after the child is born and there would only be a small fee to get the father’s name added to the child’s birth certificate at that later date.

There are some things you should know before filling out an Affidavit of Parentage. First, it gives the mother initial custody of the child unless otherwise determined by the court or agreed to in writing by the mother and father. That means that the mother has custody of the child right away. However, nothing would stop the father from filing a claim for custody or parenting time in the Family Court. By signing the Affidavit of Parentage, both parties now have an obligation to financially support this child until he or she reaches at least the age of 18. Both the mother and father now have the right to attend any hearings dealing with the adoption of the child. There are also some rights the parents are giving up by filling out the Affidavit of Parentage. These include: (1) the right to use genetic testing to determine if the father is the biological father of the child, (2) the representation of a court-appointed attorney in a paternity lawsuit, and (3) a trial to determine if the father is the biological father of the child. A man who is married to someone other than the child’s mother may fill out an Affidavit of Parentage. Also, the age of the father is of no consideration when it comes to any paternity issue. The Friend of the Court office is accustomed to dealing with issues of paternity and is often the first step in making custody recommendations and calculating child support obligations.

If both parents DO NOT AGREE that he is the father of the child:
The mother and father might not agree that he is the father of the child. What usually occurs in this case is that the father does not voluntarily assume paternity of the child by signing an Affidavit of Parentage. However, sometimes it is the mother who does not sign the Affidavit of Parentage because she does not want the father to have any involvement in the child’s life. When the parties don’t agree on paternity, the court gets involved. In order to determine paternity, a paternity suit is filed by either the mother or alleged father in the local Circuit Court. Both the mother and the alleged father are entitled to attend a court hearing that determines whether or not he is the father of the child.

One way a Michigan court determines paternity is to order that the alleged father undergo DNA testing. This is done by taking a tissue sample of the alleged father, the mother, and the child. The results will either come back that he is not the father, or that there is a greater than 99% chance that he is the father. The court determines who pays for this DNA testing. One important factor in deciding who pays is whether the mother is receiving public benefits, welfare, Medicaid, or housing assistance. If so, the Department of Human Services (DHS) may become involved in asking the Michigan Family Court to determine custody by ordering DNA testing.

 

Another way the court determines paternity is to see if there has been a “Notice of Intent to Claim Paternity” filed. A Notice of Intent to Claim Paternity is a document filed by the alleged father. If the child is born in a Michigan hospital, the Michigan courts will receive notice that this man completed a Notice of Intent to Claim Paternity. The courts will then presume that he is the father of the child, though the mother can try to overcome this presumption. In that case, the father may choose to have DNA testing done for even more proof that he is the father.

Once the court reviews all the evidence in the paternity case, it enters an order regarding paternity (which is called a Judgment of Filiation or Order of Filiation). Then, the father has the official right to request custody and parenting time and the responsibility of paying child support. Courts in Oakland, Livingston, Wayne, Washtenaw, and Macomb County are anxious to help parents trying to determine paternity. Our experienced family law attorneys can guide you through this very complex process and aid you in protecting the rights of your child.

 

The mother’s choice to put the child up for adoption
 

Should a child’s mother be allowed to put the child up for adoption without the father’s consent? You would think the answer would be no, but sometimes that is not the case.

There are times when the identity of the father is not even known. Should a mother be forced to keep her child because there is an uninvolved male out there who fathered this child? The Michigan Adoption Code has a provision that deals with this situation. If the court determines that reasonable efforts have been made to identify and locate the father, and the father (1) has not made any provisions for the child’s care, and (2) did not support the mother during her pregnancy, the court may terminate the father’s parental rights. This means that the mother would then be free to give the child up for adoption.

There are also times when the identity of the father is known, but he cannot be located. The court may terminate the father’s parental rights in this case if the court determines (1) reasonable efforts have been made to locate the father; and (2) in the last 90 days, the father has failed to provide support for the mother, show any interest in the child, or make any provisions for the child’s care. Once the court terminates the father’s parental rights, the mother is free to consent to an adoption of the child.

Of course, if the identity and whereabouts of the father are known, he has the right to refuse the adoption of the child so long as he has established his paternity over the child through: (1) being married to the child’s mother at the child’s conception or birth; (2) his voluntary assumption of paternity through an Affidavit of Parentage or Notice of Intent to Claim Paternity; or (3) a court order.

 

 

If you would like to have a consultation with an experienced postnuptial attorney, kindly contact The Cutler Law Firm at 248-489-8780 or complete THE CONTACT FORM and an Attorney will promptly respond to your inquiry.
 

The Holographic Will
When is a suicide note, more than a goodbye message to the world? I have had the pleasure of assisting a few clients during a very difficult time in their lives. They had a relative take their life, or seemingly take their own life, leaving behind a handwritten note that describes the manner in which they want their Estate to be distributed to their heirs. Consider the following cases: Case #1: A gentleman marries his long term girlfriend, with whom he has experienced an up and down relationship. Within days of their Las Vegas wedding, she takes off on a party filled trip with her girl friends and others. The gentleman continues to work while she is away, and after a while, decides to rent a room in a local hotel. He ingests a large volume of prescription and non-prescription drugs, and begins to write out a 5 page note detailing the problems in his life. He also expresses his desire to leave his 5 rental homes to his two biological children (from a prior marriage), his car and a few other items to his only brother, and SPECIFICALLY EXCLUDES HIS NEW WIFE from receiving any of his worldly belongings. I represented the brother, and worked with an attorney who represented the children. The wife attempted to secure all of the assets and burn through the funds. Fortunately, my client became suspicious and hired our firm to investigate the matter. Following a limited time for discovery, and a complete handwriting analysis, the case was presented for trial. Four days of witness testimony and dozens of documents, convinced the court to rule that the gentleman's handwritten note constituted a holographic will. The homes were secured, sold and the assets then deposited into trust accounts for the children. The wife was barred from accessing any additional money, and was physically evicted from the marital home. The legal requirements for Holographic are specific, but include the general concept of a written note by the declarant, that is dated and signed. In our case, the paperwork was not dated. We were able to arrive at the date through other evidence that was compelling to the Court. Case #2: An elderly man is taken to the hospital. His wife is to frail to join him, and remains home. When he recovers and returns to the home, he discovers his wife dead. A gun lies on the floor, and a bullet traveled through her scull. A note is discovered in her pocket, leaving their entire estate to the dead wife's sisters. As the couple have no children, their estate would have passed to their siblings. Following a series of Court hearings, the hand writing analysis confirms that the note was not written by the deceased woman. We believe that her sisters wrote the note and then shot their sister. Fortunately, the sisters are now excluded from the Estate. Criminal charges may be pending.
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