What are the rights of a biological father when the mother is married to another man?

By: Jeanne M. Hannah, J.D.

Copyright © 2006 Jeanne M. Hannah. All rights reserved.

Jeanne M. Hannah is a family law lawyer located in Traverse City, Michigan, who handles divorce, child custody, paternity, adoption, neglect, and other family law matters, and who assists fathers and mothers to exercise their rights to custody and parenting time.

         

In an interesting parentage case, Barnes v Jeudevine, decided by the Michigan Court of Appeals on August 23, 2005, Husband and Wife separated. Wife began a relationship with Boyfriend (the Plaintiff in the parentage case brought under the Paternity Act.). She became pregnant, but concealed her pregnancy from Husband. He filed for divorce. She did not participate in the divorce and a default judgment of divorce entered, which recited the language “it further appearing that no children were born of this marriage and none are expected," thus reserved no rights or obligations with respect to any children.

 

A few months after the divorce the child was born and both Mom and Dad signed an Acknowledgment of Parentage. The child shared Dad's last name. Later Mom and Dad separated; he filed an action under the Paternity Act. [Practice Note: An Acknowledgment of Parentage makes Dad a legal father, and he could/should have filed a custody case.]

 

Mom defended claiming that Dad lacked standing because the child was conceived while she was married to Husband. In other Michigan cases, we've seen that this defense usually works and the biological father is out of luck. [See, for example, the most recent case, Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172]

 

Here, the court of appeals distinguished the case factually from other cases, allowing the biological father to pursue his request for custody / parenting time.

 

Mom defended by saying that Dad had no standing to sue under the Paternity Act because the child was conceived while she was married to another man. The Paternity Act, MCL 722.711 et seq., confers standing on the father of a child born out of wedlock to sue to establish paternity. See McHone v Sosnowski, 239 Mich App 674, 677 (2000); MCL 722.714(1) and (8). 

 

The Paternity Act defines a child born “out of wedlock” as one “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.” MCL 722.711(a).

 

Under the second clause, standing to assert parentage requires an earlier judicial determination that the child is not an issue of the marriage. McHone, supra at 677-678. The trial court dismissed the paternity case saying that there had been no adjudication that Husband was not the legal father.

 

In Brown, the court held that the language in the default judgment  “it further appearing that no children were born of this marriage and none are expected" was an adjudication on the merits that the child involved was not a child of the marriage, and remanded to the trial court for further proceedings.

 

QUERY: Could this case have been easier if Dad had filed a custody case? fn 1   

 

If a custody case had been filed instead, could Mom have raised the issue of standing there since both Mom and Dad had executed the acknowledgment of parentage?  The form is clear - the parties affirm, under penalty of perjury, that they are the natural parents of the child.  The form is voluntary, a fact that is stated on the form.  By signing the acknowledgment, the writers waive the rights to genetic testing, a court appointed attorney, and/or court determination of paternity.  Signing of the form creates the responsiblity to support the child, a fact that is also clearly stated.

 

The standard for claim for revocation of an acknowledgment of parentage requires facts that constitute one of the following:  (a) mistake of fact; (b) newly discovered evidence that by due diligence that could not have been found before the acknowledgement was signed; (c) fraud; (d) misrepresentation or misconduct; or (e) duress in signing the acknowledgment. 

 

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fn1  See Hoshowski v Genaw, 230 Mich App 498 (1998): "We hold that the parties' properly executed affidavit of parentage establishes plaintiff as a parent under the Revised Probate Code, and that plaintiff was not required to first file an action under the Paternity Act before seeking custody and parenting time under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq

 

Related Articles:

How can a man protect his paternity rights if the mother wants to place the child for adoption?

 

What are the Rights of a Biological Father if the Mother is Married to Another Man?

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Jeanne M. Hannah welcomes you to contact her regarding any family law lawyer issue, including, but not limited to divorce, child custody and parenting time, child and spousal support, property settlement, pre-nuptial and post-nuptial agreements, paternity, adoption, neglect, and other family law matters. You can contact Ms. Hannah by telephone, E-mail, fax, or at the address listed above.

Jeanne M. Hannah, a family lawyer located in Traverse City, Michigan, represents clients in Grand Traverse County, Benzie County, Leelanau County, Kalkaska County, Antrim County, Emmet County, and other selected counties throughout Michigan.  Copyright © 2005 [Jeanne M. Hannah]. All rights reserved. Revised: 11/11/09

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Jeanne M. Hannah, Family Lawyer
Postal address:5922 Deer Trail Drive, Traverse City, Michigan 49684 • E-mail: jeannemhannah [at] charter.net
 

Practice Areas: Divorce  Custody  Parenting Time  Child Support Post-Judgment Modifications  Paternity  Adoption  Personal Protection Orders  Spousal Support  Property Distribution  Pre-Nuptial / Post-Nuptial Agreements Estate Planning Guardianships/Conservatorships  Neglect/Abuse Cases 

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Send mail to jeannemhannah [at] charter.net with questions or comments about this web site.

Copyright © 2005 Jeanne M. Hannah. All rights reserved. Last updated November 2009

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