Paternity: The many ways to legal fatherhood.

Fatherhood has always been more complicated than the way it is shown in 1950's sitcoms. To understand the laws of paternity in Michigan, you first have to understand the many different types of fathers, from the viewpoint of the state.

Presumed Father – A man married to the child's mother at conception or birth is automatically the child’s legal father.

Acknowledged Father - Someone who has signed an Affidavit of Parentage form and is considered the legal father.

Affiliated Father - Someone who is the child's legal father by court order.

Genetic Father – The actual biological, but not necessarily legal, father.

Alleged Father - Someone who could be the father.

Legal Father - The person who is considered to be the father by the state. This is either the presumed, acknowledged, or affiliated father.

How to Become the Legal Father

Be Married

The simplest way to be the legal father is to be married to the mother.

Sign an Affidavit

If the mother is not married, then the mother and father can together sign an Affidavit of Parentage and the father will become the acknowledged, legal father. Any man can sign the affidavit along with the mother; He does not have to be the genetic father. Most parents sign this form at the hospital when the child is born, even in cases where the parents are married. This process is called an Acknowledgment of Parentage.

DNA Testing

If either the mother or father is receiving state support, they can ask to have a DNA test done through the Michigan Department of Health and Human Services (DHS) to find out if he is the genetic father.

Adoption

If a child is being placed for adoption, even if the child isn't born yet, a genetic father can claim paternity of the child. If the court finds that he is the child's father the court may terminate his rights to the child and proceed with the adoption, or dismiss the adoption and return the child to the mother, or dismiss the adoption and grant custody of the child to the father.

Revoking Existing Paternity

If someone has already been declared the legal father, replacing that person as the legal father can be a serious challenge. If the mother was not married during the pregnancy, and the child is under three, the father can file a case to be declared the real father. These cases are usually decided by genetic tests. If the mother is married, the father has to prove that he didn't know or have any reason to have known that the mother was married, or that she was not married at the time of conception. During a divorce, the husband can ask for declaration that the child is not his, even if the child is older than three.

Time Matters

In most cases, once the child is 3 years old, it is difficult or impossible to change the legal father for the child. For the genetic father of a child who wants to have some legal rights to see that child, acting quickly matters.

When a child needs a grandparent: 6 Paths to a Grandparenting Time Order.

In many families a grandparent can become an essential caregiver to a child. This can often happen temporarily when one parent is unavailable because of work, illness, or incarceration. Or it can be permanent because of the death of one parent. In some cases children are raised by their grandparents for years, creating a natural bond between the child and grandparents that would be harmful to both if broken.

Image courtesy of Donnie Ray Jones.

But life is a constant change. The remaining parent may have been happy to have grandparents help out with the kids for years, but a remarriage, new partner, or falling out with the ex's grandparents might cause that parent to break the children's relationship with their grandparents.

In a situation like this, being cut off from their grandparents is likely to be emotional, and probably harmful to the children who have seen the grandparents as virtual parents. Fortunately there is a law for cases like this when the loss of time with grandparents is likely to harm the child physically, mentally, or emotionally. 

Six Paths to a Grand Parenting Time Order

There are six possible ways for a grandparent to be able to go to court and get a parenting time order. These paths are spelled out in MCL 722.27b(1)(a-f).

1. There is a pending court case for divorce, annulment, or separate maintenance. If one of the parents has filed for divorce or separation, a grandparent has the right to file a motion and having a hearing in that case for parenting time.
2. The parents are already divorced or legally separated. If the parents already finalized a divorce, grandparents can also go to court for a parenting time order. In most cases they should just be able to file a motion in court under the case number for that divorce.
3. The grandparent's child who was the parent of the grandchild has passed away. Along with divorce, death is the most likely reason a grandparent may need a court order to see the grandchild. The grandparent may have been extremely close to the children, but if the remaining parent didn't get along with them for some reason, they can easily deny the grandparents any time with their grandchildren.
4. The parents have never been married, are currently not living together, and there is legal proof of paternity. In some cases, especially with young parents, the parents both relied on a grandparent to help raise the children. Over time, the parents may separate, and the parent who has custody of the children might feel they have the right to deny their ex's parents time with the children.
5. Someone other than a parent has custody of the child, or the child is not living with a parent. This can be the case where the parents are in prison, in a hospital, mentally unwell, dealing with addiction, been judged unfit, or just missing. Child Protective Services, or a court, may decide to place the children with someone other than the grandparents, but the grandparents still have the right to seek time with their grandchildren. This can often be the easiest case for a grandparent to win. If there is no parent opposing the grandparenting time, the grandparent does not need to prove harm to the child, just that it would be in the child's interests to spend time with their grandparent.
6. In the last year, the child lived with the grandparents. Even if the grandparents didn't have legal custody of the child, if they "provided an established custodial environment for the child" then the grandparent can seek grandparenting time.

The rights of the parents

The purpose of this law is to protect children from the harm they might suffer if they weren't allowed to spend time with their grandparents. Proving that is the hard part.

Your grandchildren may love you, and they may be sad if you weren't allowed to see them, but the law gives preference to the parents. Unless a grandparent can prove a "substantial risk of harm" to a child, they will not be able to get a grandparenting time order if a parent opposes it. 

You have to get it right the first time

Getting a grandparenting time order is a complex process. The law only lets grandparents try for this once every 2 years. You don't want to try this yourself and have to wait two years to try again. This is a case where a skilled lawyer is vital, because you need to make your best case the very first time.

"Temporary" custody is not temporary: Why you need a lawyer.

A recent Michigan Court of Appeals case, Bolz v. Bolz, shows why it is so important that you have the help of an attorney when it comes to life-affecting legal matters. In this case, a mother was given "sole legal and physical custody" of the couple's children in the divorce, "until the [father] has completed his substance abuse program and has been sober for one year."

To the father, and even to the trial court judge, this apparently meant that once the father was sober for a year, and through the program, that he would have joint custody of the children, or at least be able to get joint custody just by showing that he had completed the requirements. But, in Michigan, there is no such thing as "temporary" custody. Custody is either sole, or joint. 

A parent can always go to court and try to convince a judge that there is some good reason for changing custody, but custody doesn't automatically change, despite what you may think the order says. The father probably thought he had won some benefit, where he would get joint custody when he completed the substance abuse program. But what he really got was worse than the default of "sole custody" to the mother. What the divorce judgment really meant was that until he was sober for a year, the court wouldn't even consider changing custody.

Having your insobriety clearly written out in a divorce judgment is probably not going to help you in the future with getting custody back, and divorce judgments are public records. Anyone in the future will be able to look this up and see that this father had some serious problems. (And now that it's gone to the Court of Appeals, that fact has been even more publicized.)

So, please remember, just because something looks like it means one thing, the legal meaning can be quite different. In this case, having sole legal custody also means that the mother will probably be able to move the children out of the state, and the father will probably have very few chances to see his children. I am guessing that this is not the outcome he expected when they first signed the divorce papers.