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In Michigan, if a mother is married when she conceives and/or gives birth, the mother's spouse is the other legal parent of the child. If someone other than the spouse is the child's biological parent, that person does not have any legal rights of parentage. If you are in this situation, you can ask the court to revoke (cancel) the parentage of your spouse.
Read this article if all of the following are true:
- You are the mother of a child;
- You were married when you conceived and/or gave birth to your child;
- Your spouse or ex-spouse is not your child's other biological parent.
This article tells you how to ask the court to revoke (cancel) the legal parentage of your spouse or ex-spouse. If you are the mother's spouse or ex-spouse, read I Am a Legal Father, and I Need to Revoke Parentage of a Child Born or Conceived During My Marriage. If you are the biological father (also called the alleged father), read I Want to Become the Legal Father of a Child Born During a Marriage.
Important! This article does not apply to you if:
- Your child was conceived by assisted reproduction (for example, donor insemination), or
- You were not married when you conceived or gave birth to your child.
If you were not married when you conceived or gave birth to your child, you can still ask the court to revoke the parentage of the other legal parent. However, the court process and the forms you need will be different from the ones in this article. If you need to revoke parentage established by Affidavit of Parentage, file a Complaint/Motion and Affidavit to Revoke Acknowledgment of Parentage. If you need to revoke an order establishing paternity (called an Order of Filiation), file a Motion to Set Aside Order of Filiation. You can only use one of these forms if your child was conceived by intercourse (not assisted reproduction).
Motion/Complaint to Determine Child Born Out of Wedlock
For the rest of this article, whenever the word "spouse" is used, it means spouse or ex-spouse.
If you need to ask the court to revoke (cancel) the legal parentage of your spouse, you must file a motion if you have an existing family court case (such as a divorce), or a complaint if you do not have an existing case. Either you, your spouse, or the person who believes they are the biological father (called an alleged father) can file the motion or complaint. In some situations, the Michigan Department of Health and Human Services (MDHHS) can also file this motion or complaint. You can use the Do-It-Yourself Revoke Parentage Established by Marriage tool to prepare the forms you need for the court process.
Depending on who asks the court to revoke the spouse's parentage, there are different things that have to be proven in court. Michigan law makes it easiest for the mother's spouse to ask for their parentage to be revoked. It is the most difficult for the alleged father to ask for the spouse's parentage to be revoked.
Requirements
There are four different ways that you, as the mother or birthing parent, can ask the judge to determine that the child was born out of wedlock and revoke their parentage.
Option 1:
- You must name the alleged father (the other biological parent) in the court papers you file;
- You must file the papers before the child turns three years old, unless the court gives you a time extension (see below); AND
- You must prove that you, your spouse, and the alleged father at some time all openly acknowledged that the alleged father is the child’s other parent.
Option 2:
- You must name the alleged father in the court papers you file; AND
- You must prove that your spouse failed, without good cause, to provide significant and regular support for the child for two years or more before you filed the papers, even though they were able to help support the child.
Option 3:
- You must name the alleged father in the court papers you file; AND
- You must prove that, for two years or more before you filed the papers, your spouse failed to significantly comply with the child support order requiring him to pay support for the child.
Option 4:
- You must name the alleged father in the court papers you file;
- You must file the papers before the child turns three years old, unless the court gives you a time extension (see below); AND
- You must prove that your spouse lives apart from the child.
If one or more of these options fits your situation, you can ask the court to revoke your spouse’s parentage. You do this by filing a motion in one of the following cases:
- A divorce or separate maintenance case between you and your spouse
- A child support case involving the child
- Any other case involving child support, parenting time, or custody of your child
- An ongoing abuse and neglect case involving your child
If none of these cases exist, you can file a complaint to start a new case. You can prepare either a motion or complaint using our Do-It-Yourself Revoke Parentage Established by Marriage tool.
Requesting a Time Extension
If you are relying on option 1 or 4 above, you are supposed to file your papers before your child turns three years old. In some situations, the judge may extend your time for filing. If your child is older than three and you want to ask for an extension to file your case, file a Motion and Affidavit for Extension of Time to File Action for Revocation of Parentage. The Do-It-Yourself Revoke Parentage Established by Marriage tool can help you prepare this Motion and Affidavit along with the other forms you need.
To qualify for a time extension, you have to show that you failed to file before the child turned three because of one of the following reasons:
- Mistake of fact
(Example: You thought your spouse was your child’s father until your child turned three years old.)
- Newly discovered evidence that by due diligence could not have been found earlier
(Example: You thought your spouse was your child’s father because your spouse took a paternity test, and the results showed that he was the father. After your child turned three, you found out that the test results may have been inaccurate.)
- Fraud
(Example: You had sex with a man other than your spouse around the time you conceived your child, and he told you that he was infertile, even though he knew this was not true. He intended for you to believe him. Relying on this lie, you believed that your spouse was the child’s father because he was the only other man you had sex with around this time.)
- Misrepresentation
(Example: You had sex with a man other than your spouse around the time you conceived your child, and he told you that he was infertile. He believed he was infertile, and he was not trying to deceive you. You relied on this information—which later turned out to be false—and believed that your spouse was the only man who could be your child’s father.)
- Duress
(Example: Your spouse threatened to physically harm you if you filed court papers to revoke his parentage.)
- Misconduct
(Misconduct could be any other wrongful conduct not covered by one of the other categories that prevented you from filing before your child turned three years old.)
If the judge grants you a time extension, you must later prove by clear and convincing evidence that revoking the legal father’s parentage and making the alleged father the new legal father will not go against the best interests of the child. See the “Best Interests of the Child” below.
Revoking Parentage
Genetic Testing
The judge may order you, your spouse, and the alleged father to complete genetic testing to be sure who the child’s father is. Do what the judge’s written order says. The order will most likely include who must pay for the cost of genetic testing, when testing must be finished, and when the results must be filed with the court.
The judge may also include instructions about where to go for testing. If not, you can search online for genetic testing or DNA testing in Michigan. Search a company’s website (for example, on the “About” page) to make sure it is accredited by the American Association of Blood Banks (AABB).
The judge’s clerk or secretary or the Friend of the Court may also be able to tell you where you can go for genetic testing.
Best Interests of the Child
The judge may also consider the best interests of the child in deciding whether to revoke the legal father’s parentage.
Even if you meet one of the sets of requirements above and genetic testing shows that your spouse is not the child’s father, the judge can refuse to revoke parentage if it would go against the best interests of the child. You may need to show that it is in the best interests of your child for the judge to revoke your spouse’s parentage. The judge may consider the following factors:
- Whether your spouse should be allowed to deny parentage because of his conduct
- How long your spouse has known he might not be your child’s father
(For example, if your spouse has known for a couple years that he might not be your child’s father and has not filed an action to revoke parentage, revoking his parentage may be against the best interests of your child.)
- The facts surrounding your spouse’s discovery that he might not be your child’s father
- What kind of relationship your child has with your spouse
(For example, if your spouse and child have a close relationship, revoking your spouse’s parentage may be against your child’s best interests.)
- What kind of relationship your child has with the alleged father
(For example, if the alleged father has a close relationship with your child, revoking your spouse’s parentage may be in your child’s best interests.)
- Your child’s age
(For example, revoking your spouse's parentage may be in your child’s best interests if your child is very young and not very attached to your spouse.)
- Whether your child would be harmed if your spouse's parentage is revoked
- Anything else related to why your spouse's parentage should or should not be revoked
Order Revoking Parentage
If the judge grants your motion or complaint, they will sign an order revoking your spouse's parentage. If your spouse has a child support obligation, the judge can set it aside starting with the date you filed your Motion/Complaint to Determine Child Born out of Wedlock.
If your spouse owes back child support (arrears) from the time before you filed your motion or complaint, they may still owe this debt even if the judge revokes their parentage. You may be able to waive (forgive) some or all of this debt, depending on whether your spouse owes the support payments to you or the state. Your spouse can also file a motion asking the judge for relief from the prior support order.
If the judge denies your motion or complaint, then your spouse will continue to be the child’s legal father. They will continue to have the rights of a legal parent (the ability to ask for custody and/or parenting time) and the obligations (child support).
Birth Certificate
Your spouse’s name will not be removed automatically from the birth certificate if parentage is revoked. You must mail a completed Application to Correct or Change a Michigan Birth Record to Michigan Vital Records Changes. You will also need to include the court order revoking parentage and a check or money order. Read the application form for more information.
Establishing Parentage of the Biological Father
After your ex-spouse's parentage is revoked, you and/or the biological father will need to take extra steps for him to become a legal parent. Read How to Become a Legal Parent to learn more.
Finding a Lawyer
You might decide you want a lawyer to help you. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.