Whether a man can exercise parental rights over his child may depend on the father’s marital status at the time the child was either born or conceived – this finding will also impact how he may go about establishing paternity. When a child is born and/or conceived during a marriage, the husband is presumed to be the father, and is automatically deemed to be the legal father of the child, and may enjoy the legal rights associated with that. When a child is born out of wedlock, however, parents are required to take proactive steps in order to establish the paternity of the child. If you are the parent of a child born out of wedlock, and desire to appropriately legitimize the child by establishing legal parentage, it is important that you understand the different processes available in Michigan to do so.
Establishing Paternity through the Michigan Paternity Act
The most common way to establish paternity for a child born out of wedlock in Michigan is through the Michigan Paternity Act, found in MCL 722.711 et. seq. The Paternity Act essentially serves two primary purposes: to promote the legitimization of children born out of wedlock, and to provide a mechanism through which to determine appropriate custody, parenting time, and support for children born out of wedlock.
An action for paternity can be initiated by multiple parties, including the child’s mother, the putative father, or, in cases where the child is on public assistance, the Department of Human Services. Pursuant to MCL 722.714(1), the action must be initiated in the county where either the mother or child resides, unless they both reside outside of Michigan, in which case the action may be initiated in the county where the putative father resides. A paternity action cannot be initiated if the father previously acknowledged paternity under theAcknowledgement of Parentage Act.
Initiating a Paternity Action in Michigan
To initiate a paternity action, the moving party must file a Complaint with the appropriate county’s Circuit Court in the Family Division. The complaint must allege facts sufficient to establish that the child was born out of wedlock. Pursuant to MCL 722.711(a), a “child born out of wedlock” is defined as:
A child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.
If any party to the action disputes the alleged paternity after the action is filed, the parties are permitted to engage in a period of discovery. This discovery typically involves a motion with the court to order blood or DNA testing in an attempt to establish the likelihood of paternity. MCL 722.716(5) states that if a DNA test results in a probability of paternity of 99% or greater, there is a presumption of paternity. If this occurs, the burden shifts entirely to the contesting party to rebut the presumption.
Once the presumption is established through DNA testing, any party can petition the court for summary disposition. Alternatively, if the matter proceeds to trial, the plaintiff must establish by a preponderance of the evidence that the putative father is the father of the child.
Orders of Filiation
If the court finds, following trial or a motion for summary disposition, that the putative father is the father of the child, or if the court enters a default against a defaulting party, the court will enter an Order of Filiation. The Order of Filiation will legally declare the paternity of the child, and will also include an identification of the payer of child support. The Order of Filiation must also include a provision regarding the custody and parenting time of the child. In addition to the Order of Filiation, the Court will order that child support be paid, and appropriate support will then be calculated according to the Michigan Child Support Formula.
After an Order of Filiation is entered by the Court, the clerk must then notify the Department of Community Health of the Order pursuant to MCL 722.717(4). The Department of Community Heath will update the child’s birth record to include the name of the legal father.