A commonly asked question involves establishing paternity of a child in Michigan. An experienced attorney understands that each case is different and that the answer often requires a thorough analysis of the facts. There is no “one size fits all” in these kinds of cases.
One significant consideration is the marital status of the parties at the time a child is born. For example, paternity is automatically established if a child is born during the course of a marriage. That means the married father is the presumed father of the child and nothing else needs to be done.
This may, however, pose a significant problem for parties that are living separate but still legally married. In this situation, the presumed father may not be the actual father of the child but in the eyes of the law, he will be considered the father of the child. In the event that a child is born to the mother by another man during the course of the marriage, the husband will be considered the father of the child and will have to take steps to revoke paternity of this child. Otherwise he may be on the hook for various obligations including child support payments once a divorce action is filed. Likewise, the actual father will have to take steps to establish paternity of the child. Both situations require the involvement of the circuit court’s family division and a skilled attorney is highly recommended so paternity can either be established or revoked accordingly.
On the other hand, paternity is not automatically established for a couple that is not legally married but only dating. Following the child’s birth, it is common for the parties to fill out what’s known as an “Affidavit of Parentage” (AOP) at the hospital. The AOP is then sent to the Vital Records Unit in Lansing which is filed accordingly with the State and in turn establishes paternity of the child. It is very important to understand that the mother is initially awarded custody of the minor child even if the father fills out the necessary forms at the hospital and establishes paternity. It will be up to the father to then file a separate custody action at the circuit court to establish custody and parenting time. Otherwise, the mother may deny the father parenting time and she will be responsible in making major-life decisions (including medical decisions and school decisions) for the child without much consequence.
In the event that the father does not execute an AOP at the hospital, then he can seek to do it later with the mother’s cooperation. The AOP needs to be signed and notarized by the parents. Even if the mother cooperates, the father will still need to proceed with a formal custody action which would award custody and parenting time. If, however, the mother will not cooperate, then it’s left up to the father to file a formal paternity action. Once the paternity action is filed, the father will need to establish paternity of the child by a simple paternity test. The father may petition for an order to compel DNA testing which can establish paternity of a child. The Court must order that the mother, child, and the alleged father submit to blood or tissue type determinations. Following the results, MCL 722.716 (5) provides that “if the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is established.” Once paternity is established, the father may seek an order of Filiation that formally establishes paternity of a child. Then the only remaining issue to determine is custody, parenting time, and child support. A separate custody action doesn’t need to be filed if a paternity action is pending. Custody, parenting time, and child support can be determined in a pending paternity action.
Paternity actions are very complex and require an attorney that understands which action should be filed and why. We serve Oakland County, Macomb County, and Oakland County. Give us a call today for your free consultation at (248) 456-8243.