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

Michigan parentage/paternity law does not reflect the existence of LGBTQI parents in Michigan. We use gendered language in this article to match the current law. If you have questions about how the law in this area will apply to your family, use the Guide to Legal Help to find a lawyer or legal services in your area.

In Michigan, a man who is married to a woman when her child is born or conceived is the legal father of that child. This is true even if he is not the child’s biological father. He has all the rights and responsibilities of a parent, while the biological father does not have any.

If you are the biological father in this situation, the only way you can become the child’s legal father is through a court process where the judge revokes (undoes) the husband’s (or ex-husband’s) status as legal father. If the judge revokes the husband’s paternity, then you can become the legal father by court order or through an Affidavit of Parentage.

If your child’s mother was never married and you want to become the legal father, you do not need to file a Motion or Complaint to Determine Child Born Out of Wedlock. If no one else is the legal father, you can become the legal father by signing an Affidavit of Parentage with the mother and filing it. Or you can become the legal father through a court order called an Order of Filiation.

If another person is your child’s legal father but was never married to your child’s mother, a court would need to revoke their paternity before you could 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 paternity 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

In order to have the husband’s paternity revoked, a motion or complaint must be filed asking a judge to determine that the child was born out of wedlock. This is the only way to revoke the husband’s paternity after June 2014. Either you, the mother, or her husband 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 Paternity Established by Marriage tool to prepare the forms you need for the court process.

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

Requirements

There are five different ways that you, as the biological father, can ask the judge 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 husband 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 husband 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 he was 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 husband 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 husband 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 husband’s paternity. You 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 husband

• 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 Paternity 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 Paternity. The Do-It-Yourself Revoke Paternity 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 received a letter from the testing facility stating that 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 husband 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 husband’s paternity.)

• 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.)

If the judge grants you a time extension, you must later prove by clear and convincing evidence that revoking the husband’s paternity and making you the new legal father will not go against the best interests of the child. See the “Best Interests of the Child” section below.

Revoking Paternity

Genetic Testing

The judge may order you, the mother, and her husband 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 husband’s legal paternity.

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 husband’s paternity if doing so would go against the best interests of the child. You must prove that it is in the best interests of the child for the judge to revoke the husband’s paternity. The judge may consider the following factors:

• Whether the husband should be allowed to deny parentage because of his conduct

• How long the husband has known he might not be the child’s father

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

• The facts surrounding the husband’s discovery that he might not be the child’s father

• What kind of relationship the child has with the husband

(For example, if the husband and the child have a close relationship, revoking the husband’s paternity 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 husband’s paternity may be in the child’s best interests.)

• The child’s age

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

• Whether the child would be harmed if the husband’s paternity is revoked

• Anything else related to why the husband’s paternity should or should not be revoked

Results

If the judge grants your motion or complaint, the judge will sign an order revoking the husband’s paternity. The judge may also sign an order naming you as the new legal father. Otherwise, you and the mother can sign and file an Affidavit of Parentage to make you the legal father.

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

Birth Certificate

The husband’s name will not be removed automatically from the birth certificate. Either the husband 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 paternity 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.