Many of you know that I've always had a special interest in paternity or parentage issues. Research shows that children need a good relationship with both parents in order to grow up as healthy, productive adults. Unfortunately, that doesn't always happen. Yes, high-conflict issues sometimes occur in divorces. But I most frequently see disruption of normal parent-child relationships within the context of paternity / parentage cases.
There are some ways in which the statutes governing parentage and custody issues act to disadvantage unmarried fathers who want to protect and foster their parent-child relationships.
The 100-Mile Rule
Section 11 of the Child Custody Act, MCL 722.31, deals with the legal residence of a child. Subsection (1) states that a child has a legal residence with each parent and it says that a parent cannot move a child’s legal residence more than 100 miles from the child’s legal residence at the time a custody action is filed.
There are several instances in which the 100-mile rule does not apply:
Subsection (2) states: This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.
Subsection (3) states: This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart.
How Unmarried Dads are at a Disadvantage: The Acknowledgment of Parentage Act
What about cases where the parents are not married? If a father has not signed an acknowledgment of parentage, he has no legal right to custody until he’s been adjudicated as the father. Therefore, if Mom wants to do so, she can move anywhere – across the country even – disrupting the father-child relationship.
If a father has signed an acknowledgment of parentage, he is not much better off. Under the Acknowledgment of Parentage Act, a man is established as a legal father and can seek custody or parenting time without having to file a paternity case. [See sections 3 and 4 of the Act, MCL 722.1003 and MCL 722.1004] The mother, however, is presumed to have custody in the absence of a court order or a writing by the parties agreeing to joint custody. [See section 6 of the Act, MCL 722.1006]
Therefore, if there is no written agreement and if there is no court order, Mom can move with the child anywhere she wishes to move. Once she does that, her new residence is a “legal residence” of the child at the time any custody action might be filed. Where Mom moves hundreds or thousands of miles away, she can seriously compromise Dad’s ability to maintain a father-child relationship.
The Parental Kidnapping Statute
This law provides, in part, as follows:
(1) An adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights pursuant to a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention. See MCL 750.350a.
How does the Parental Kidnapping Statute Protect or Disadvantage Unmarried Dads?
First, a dad has to have a “lawful court order” in order to remove a child and keep the child away from a mother if the parents are unmarried; even then, he cannot keep the child in violation of an order’s provisions. If there is no court order, an unmarried dad may be charged with a felony under the parental kidnapping statute if he keeps the child from Mom because of the fact that Mom is presumed to have custody under the Acknowledgment of Parentage Act. It is important to note that subsection 5 of the parental kidnapping statute provides a complete defense if a parent proves that his or her actions were taken for the purpose of protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.
Children are Commonly Born into Cohabiting Relationships -- Relationships Known to be Fragile
It’s not unusual for parents to be unmarried these days. In 1960, the number of opposite-sex cohabiting couple households was estimated at less than half a million; at the 2000 Census, there were nearly 5 million such households. Pamela Smock, a demographer from the Institute for Social Research at the University of Michigan, and her co-author, Wendy Manning, opine that the “Marriage Initiative” will not, in the long run, improve the lot of children in the United States. It’s not the fact that their parents are unmarried that makes these unions more fragile. It’s the fact that these parents typically have less education, lower income, and fewer job prospects that impacts the couple’s relationship. See Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, Smock, Pamela J and Manning, Wendy D., Law and Policy, Vol 26, No 1, January 2004.
What’s the Bottom Line?
Unmarried dads need to plan ahead in order to avoid having their parental rights to their child disrupted in the event that their relationship with the mother of the child ends. In order to protect against Mom’s ability to remove the child more than 100 miles from Dad’s residence, unmarried dads either need to have a written agreement with Mom stating that they have joint legal custody and joint physical custody, or they need to file a custody action seeking a court order. If Mom moves prior to the time that Dad gets a written agreement or files a custody action, her new residence is a “legal residence” of the child and the 100-mile rule will not apply. (Review subsection 2 of MCL 722.31 and subsection 6 of the Acknowledgment of Parentage Act).
Moreover, if Mom moves a long distance away, Dad will have to file for custody in the county and state where the child is located. Dad will be at a tremendous disadvantage. For example, his witnesses will be located, more than likely, near his residence. The cost and inconvenience of getting witnesses to testify will be great. It will likely take months to get a hearing in court to determine Dad’s custodial and parenting time rights. The time between Mom’s move and Dad’s ability to actually get a hearing in court may result in a finding by the court that Mom has an established custodial environment. The legal effect of that can be devastating because it increases Dad’s burden of proof. Instead of having to prove by a preponderance of the evidence (more than likely – e.g. 51% vs. 49%) that his custody or parenting time would be in the best interest of the child, he’ll have to prove it by clear and convincing evidence. That’s like having to prove guilt beyond a reasonable doubt in a criminal case. To avoid the burdens imposed by law that govern custody disputes, unmarried dads need to take action to protect their parent-child relationships.
There is an increased incidence of unmarried cohabitation – relationships into which children are born. Research shows that these relationships are relatively unstable. As a result, fathers need to protect their parental rights by taking prompt and effective action. Otherwise, if the relationship falters, dads will be at a tremendous disadvantage in establishing and exercising custodial and parenting time rights.
Smock and Manning find that over 50% of cohabiting unions in the U.S., whether or not they are eventually legalized by marriage, end by separation within five years compared to roughly 20% for marriages. They say in addition, that research suggests that marriages that begin as cohabitations are more likely to dissolve than those that do not.
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What are the Rights of a Biological Father if the Mother is Married to Another Man? Posted April 4, 2005