I Want to Become the Legal Father of a Child Born During a Marriage

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 father, that person does not have any legal rights of parentage. If you are the biological father in this situation, you can ask the court to revoke (cancel) the spouse's legal parentage. If the court revokes their parentage, then you can you take steps to become a legal parent of the child.

This article tells you how to ask the court to revoke the legal parentage of the mother's spouse or ex-spouse if you are the biological father (also called the alleged father). 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 mother, read I Am a Mother, and I Need to Revoke Parentage of My Spouse or Ex-Spouse.

Important! This article does not apply if:

• Your child was conceived by assisted reproduction (for example, donor insemination), or
• The mother was not married when they conceived or gave birth to the child,

If your child’s mother was not married at the time she conceived or gave birth, someone else may still have become a legal father by an Affidavit of Parentage or court order. If that happened, a court will need to revoke their parentage before you can become the legal father. However, the court process and the forms you need will be different from the ones described in this article. To ask to revoke parentage established by Affidavit of Parentage, you will need to file a Complaint/Motion and Affidavit to Revoke Acknowledgment of Parentage. To ask to revoke an order establishing paternity (called an Order of Filiation), file a Motion to Set Aside Order of Filiation.

Motion/Complaint to Determine Child Born Out of Wedlock

For the rest of this article, whenever the word "spouse" is used, it means the mother's spouse or ex-spouse. 

If you need to ask the court to revoke the legal parentage of the mother's spouse, you must file a motion or complaint with the court. Either you, the mother, or the mother's spouse can file a motion or complaint. In some situations, the Michigan Department of Health and Human Services (MDHHS) can also file to revoke parentage. You can use the Do-It-Yourself Revoke Parentage Established by Marriage tool to prepare the forms you need for the court process. Based on your answers, this tool will determine whether a motion or complaint is right for your situation.

In court, you may be called the alleged father. Depending on who asks the judge to revoke the spouse’s parentage, there are different things that have to be proven in court. Michigan law makes it easiest for the spouse to ask for his parentage to be revoked. It is the most difficult for the alleged father (you) to ask for the spouse's parentage to be revoked.

Requirements

There are five different ways that you, as the alleged father, can ask the court to determine that the child was born out of wedlock.

Option 1:

• You must prove that you did not know or have reason to know that the mother was married when the child was conceived;
• You must prove that you, the mother, and her spouse at some time all openly acknowledged that you are the child’s father; AND
• You must file your motion or complaint before the child turns three years old, unless the court gives you a time extension (see below).

Option 2:

• You must prove that you did not know or have reason to know that the mother was married when the child was conceived; AND
• You must prove that the spouse failed, without good cause, to provide significant and regular support for the child for two years or more before you filed your motion or complaint, even though they were able to support or help support the child.

Option 3:

• You must prove that you did not know or have reason to know that the mother was married when the child was conceived; AND
• You must prove that, for two years or more before you filed your motion or complaint, the spouse failed to significantly comply with the child support order requiring him to pay support for the child.

Option 4:

• You must prove that you did not know or have reason to know that the mother was married when the child was conceived;
• You must prove that the spouse lives apart from the child; AND
• You must file your motion or complaint before the child turns three years old, unless the court gives you a time extension (see below).

Option 5:

• You must prove that the mother was not married when the child was conceived; AND
• You must file your motion or complaint before the child turns three years old, unless the court gives you a time extension (see below).

If one or more of these options fits your situation, you can ask the court to revoke the spouse’s parentage. Do this by filing a Motion to Intervene and a Motion to Determine Child Born Out of Wedlock in one of the following cases:

• A divorce or separate maintenance case between the mother and her spouse
• A child support case involving the child
• Any other case involving child support, parenting time, or custody of the child
• An ongoing abuse and neglect case involving the child

If none of these cases exists, you can file a Complaint to Determine Child Born Out of Wedlock. You can prepare either a motion or complaint using the Do-It-Yourself Revoke Parentage Established by Marriage tool.

Requesting a Time Extension

If you are relying on option 1, 4, or 5 above, you are supposed to file your papers before the child turns three years old. In some situations, the judge may extend your time for filing. If the 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 mistakenly believed you were not the child’s father, and you did not find out you are the biological father until the child was already three.)

• Newly discovered evidence that by due diligence could not have been found earlier

(Example: You believed you were not the child’s father because you took a paternity test before the child turned three, and the results showed you were not the father. After the child turned three, you found out the test results may have been incorrect.)

• Fraud

(Example: The child’s mother told you she had a miscarriage when, in fact, she did not. You did not keep in contact and did not find out the child existed until after the child was three. The mother intended for you to believe the child was never born.)

• Misrepresentation

(Example: The child’s mother convinced you her spouse was the father. The mother believed this was true and did not intend to deceive you. After the child turned three, you found out you are the child’s biological father.)

• Duress

(Example: Someone threatened to hurt you if you filed court papers to revoke the spouse’s parentage.)

• Misconduct

(Misconduct could be any other wrongful conduct not covered by one of the other categories that prevented you from filing before the child turned three years old.)

Revoking Parentage

Genetic Testing

The judge may order you, the mother, and the mother's spouse to have genetic testing done 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 genetic testing, when testing must be finished, and when the results must be filed with the court.

Best Interests of the Child

The judge may also consider the best interests of the child in deciding whether to revoke the parentage of the mother's spouse.

Even if you meet one of the sets of requirements above and genetic testing shows that you are the child’s father, the judge can refuse to revoke the spouse's 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 the child for the judge to revoke the spouse's parentage. The judge may consider the following factors:

• Whether the spouse should be allowed to deny parentage because of his conduct
• How long the spouse has known he might not be the child’s father

(For example, if the spouse has known for a couple years that he might not be the child’s father and has not asked the court to revoke parentage, revoking his parentage may be against the best interests of the child.)

• The facts surrounding the spouse's discovery that he might not be the child’s father
• What kind of relationship the child has with the mother's spouse

(For example, if the spouse and the child have a close relationship, revoking the spouse’s parentage may be against the child’s best interests.)

• What kind of relationship the child has with you

(For example, if you have a close relationship with the child, revoking the spouse's parentage may be in the child’s best interests.)

• The child’s age

(For example, revoking the spouse's parentage may be in the child’s best interests if the child is very young and not very attached to the spouse.)

• Whether the child would be harmed if the spouse's parentage is revoked
• Anything else related to why the 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 the spouse's parentage. Read below to learn about the extra steps you will need to take to become the child's legal parent.

If the judge denies your motion or complaint, the spouse will continue to be the child’s legal father.

Becoming a Legal Parent

After the court revokes the spouse's parentage, you and/or the mother will need to take extra steps for you to become a legal parent. Read How to Become a Legal Parent to learn more.

Birth Certificate

The spouse’s name will not be removed automatically from the birth certificate. Either the spouse or the child's mother must mail a completed Application to Correct or Change a Michigan Birth Record to Michigan Vital Records Changes, along with the court order revoking parentage and a fee.

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.