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

Contents

    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.

    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 Department of Health and Human Services (DHHS) can also file this motion or complaint. You can use the Do-It-Yourself Revoke Paternity Established by Marriage 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.

    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 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” 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. The judge will order you and/or the other parties to pay for the testing.

    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.