Sterling Law Office

ADAM at the Sterling Law Office is pleased to announce that fathers will soon have a new tool available to them to establish custody of their children born to unmarried parents. Thousands of unmarried Michigan parents each year sign an Affidavit of Parentage after the birth of a child. The names of these unmarried parents then appear on the child’s birth certificate. So that establishes equal rights to custody? NO! Unmarried fathers are shocked to learn that even though their parentage is established, unlike married parents, they do not have equal rights to custody. The fine print of the Affidavit of Parentage states that the mother has custody until a court orders anything otherwise! So surely the father can visit the courthouse and get this process moving, right? NO! The clerk’s office and the Friend of the Court office will tell him he must file a complaint. Well, where’s the form? Sadly, until now, there has been no form to get the case started, even though the State of Michigan has created dozens of family court forms for every other conceivable situation. Fathers without the means to hire private counsel have in the past had to wait for the mother to bring an action against him for child support usually through the Prosecutor’s Office, and in that child support case, if he agrees to whatever the mother demands, he can get a custody and parenting time order thrown in with the support order. If he disagrees on custody and parenting time, the court orders child support and nothing more (this despite the fact that since 2008 child support has been based on a shared economic formula considering the number of “overnights” each parent has with the child). To get disputed custody and parenting time ordered, he must still bring a separate action. He’s still shut out right where he started. The American Divorce Association for Men at the Sterling Law Office in northern Michigan has heard the frustration of unmarried fathers and stepped forward to fill the gap. Its new form Complaint to Establish Custody, Child Support and Parenting Time has now entered the final testing phase. After hearing the feedback from test participants, ADAM at Sterling Law Office will make the form packet with directions and required attachments available for purchase by mail and eventually through the internet. To participate in the free testing phase, contact Lea Ann Sterling at Sterling Law Office’s Empire branch 231-326-4010.

Posted 1/30/12 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

            This article will explore some different facets of Michigan paternity law through a series of hypothetical paternity disputes.  Paternity can present some complicated legal issues.  Many clients believe they have a right to claim a child as their own, but find this is not the case.  Before getting started with the hypotheticals, however, it may be useful to define a term which will frequently appear, “Putative Father.”  A “Putative Father” is an alleged father who has not been proven to be the biological father.

1.       Putative Father “John” is unmarried.  John’s girlfriend conceives and claims she is pregnant by him.  He believes this to be true.  At the time of childbirth, still unmarried, both John and Mother sign an Affidavit of Parentage at the hospital.

          Q: Is John the legal father?

          A: Yes.  An acknowledgment of paternity under the Acknowledgment of Parentage Act, MCL 722.1001 et seq., is the basis for court-ordered support, custody, or parenting time without further adjudication as to proof of fatherhood. The act provides that if the parentage of a child is acknowledged under the act, the child will have the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage.

          Q: Is John still considered a “Putative Father”?

          A. No.  Unless the Affidavit of Parentage is revoked–a process which is explained below–John will be considered the natural father of the child.

2.       Later, John and Mother marry.  The marriage sours, and John decides to divorce.  John comes to believe that he is not the child’s biological father. 

          Q: What are John’s choices?

          A: John can contest his paternity of the child in his divorce case.   Serafin v Serafin, 401 Mich 629, 258 NW2d 461 (1977); MCL 552.29. John can do this by filing a motion to revoke the Affidavit of Parentage.   Revocation of an Affidavit of Parentage is only possible when a claim for revocation is supported by facts that constitute one of the following: 1) Mistake of fact; 2) Newly discovered evidence that by due diligence could not have been found before the Affidavit was signed; 3) Fraud; 4) Misrepresentation or misconduct; or 5) Duress in signing the AOP. Revocation also requires that John convince the court that such an action would be equitable, i.e, “fair,” under the circumstances.

             Mother also has the right to contest John’s paternity of the child in the divorce case.  However, if neither John nor Mother contests paternity in the divorce case, the issue will be forever closed. A support order arising from a divorce decree constitutes an adjudication of paternity and establishes the duty of support. A subsequent proceeding to relitigate the issue of the ex-husband’s paternity is barred.  Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986).

3.       While John is married, Mother comes to him and claims that he is not the child’s biological father.  A third party, “Jack,” comes forward, claiming to be the biological father, and desires to acquire the rights of a legal father. 

          Q: What rights do the parties have to contest paternity?

            A: Either John or Mother can contest paternity by initiating a court case as described above.  With respect to Jack, until such time as the Affidavit of Parentage is revoked, he has no right to contest paternity through the court. If an acknowledgment of parentage has been properly executed, subsequent recognition of a person as the father in an Order of Filiation by way of a paternity action cannot occur unless the acknowledgment has been revoked. Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006).  Furthermore, an action or motion to revoke an Affidavit of Parentage can only be brought by the mother, the man who signed the Affidavit, the child, or the county prosecutor.   This means that Jack may never get the right to bring a paternity case.         

 4.         Assume that, instead of giving birth to the child before marrying John, Mother gave birth while married to John.       

             Q: Does this change the rights of the parties to contest paternity?

             A: No.  Either John or Mother can still contest paternity through the court, as described above.  With respect to Jack, he has no right to contest paternity unless John or Mother initiates a court case and the court in such case issues a Final Order that the child in question is illegitimate.  Only then would Jack be allowed to start a paternity case.  Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991); MCL 722.711(a).

 5.         Continuing from number 4, Mother subsequently files for divorce, and contests John’s paternity of the child.  A genetic test is conducted, and the court finds that John is not the child’s biological father.  John, who has raised the child as his own, still seeks custody, and Mother still seeks child support from John.             

             Q: Can John still seek custody of the child in the divorce?

          A: Yes. John could still be awarded custody of the child under these circumstances under the theory of equitable parenthood.  Under this theory, a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.  Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987).

             Q: Can Mother seek child support from John for the child?

          A: Yes. Mother could be awarded child support from John under these circumstances under the theory of equitable estoppel.  Equitable estoppel arises where a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, the other party justifiably relies and acts on that belief, and the other party will be prejudiced if the first party is allowed to deny the existence of those facts. Soltis v First of America Bank-Muskegon, 203 MichApp 435, 513 NW2d 148 1994.  The Court of Appeals has applied this doctrine to estop a husband from denying a support obligation to a child born during marriage, but of whom he is not the biological father.  See, e.g., Nygard v Nygard, 156 MichApp 94, 401 NW2d 323 (1986).

 6.         Now assume the following: Mother gave birth to the child before marrying John, and a third party, Jack, signed the Affidavit of Parentage as the father.  John later weds Mother.  John treats the child as his own.  Mother filed for divorce, and seeks child support from John for the child, while refusing to revoke the Affidavit of Parentage.  Jack likewise refuses to revoke the Affidavit.  John wants custody of the child. 

             Q: Can John contest the paternity of the child?

             A: No. Until such time as the Affidavit of Parentage is revoked, he has no right to contest the paternity of this child in his divorce case. Sinicropi, supra.

            Q: Can John still seek custody of the child in the divorce?

             A: No. The Supreme Court has held that “the Legislature, not the judiciary, is the appropriate entity to weigh the sensitive public policy issues involved in creating or extending parental rights to persons with no biological or marital link to a child. Therefore, we will not extend the doctrines of equitable parenthood or equitable estoppel outside the context of marriage.”  Van v Zahorik, 460 Mich 320, 597 NW2d 15 (1999). 

             Q: Can Mother seek child support from John for the child?

             A: No. See Van, supra.

Posted 9/15/11 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

When parents with minor children decide to go their separate ways, decisions and arrangements must be made for custody and care of the children. “Custody” in Michigan law is comprised of two elements, physical custody and legal custody. Physical custody means where the children reside and who takes care of them on a day-by-day basis. Legal custody means who has the right and responsibility to make important choices for the children, such as for education, health care, cultural and religious activity, and so forth.

Within the boundaries of this broad framework of custody, a variety of possible arrangements can be set up, depending upon the particular family circumstances. Following is an explanation of how custody matters proceed and definitions of the various forms custody can take.

Defining custody during family dissolution: the issue of custody arises when parents of minor children decide to separate. Some couples cooperate and negotiate for themselves an agreement about custody for the short-term, while the separation or divorce gets settled, and also for the long-term. When the parents cannot agree on a custody plan, a hearing for temporary custody is held by the family court to issue an order that outlines a temporary custody assignment. Temporary custody is often granted to the person who remains in the family home, or who typically has done the majority of day-by-day care of the children. Temporary custody orders very often determine what the permanent custody order will be.

Mediation: if custody or a divorce proceeding is contested, Michigan family court requires the parties to attend mandatory mediation. Mediation is a method the courts use to try to resolve disputes without going to trial. The parties meet with a professional mediator to review and attempt to come to agreement on issues of contention, such as custody arrangements. When a custody plan is agreed upon in mediation, it can include a requirement that future custody or visitation disagreements must be returned to the mediation process.

Custody evaluation: when custody is in dispute, the family court may order a custody evaluation before a custody determination is made. The evaluation will include interviews with the parents, the children, and possibly other knowledgeable witnesses. It can also involve psychological testing of the parents and children. A court-appointed social worker, psychologist or other mental health specialist carries out the evaluation and then makes a recommendation on custody to the court. The evaluation process may take from one to three months.

Modification of custody: after a permanent custody agreement has been reached by the parties or ordered by the court, parents can go back to court to request a change or “modification” in the custody arrangement. In Michigan and the majority of states, to protect the children and parties from the turmoil of continuing court battles and upheaval, the parent asking for a modification must show a significant change in circumstances or “proper cause,” and the request must be made and proceed through the family court in the state where the children live.

Sole custody: sole physical custody means the children will reside primarily with one “custodial” parent. The other is the “non-custodial” parent, who will have a schedule for visitation (also known as parenting time) when the children may stay with that parent, such as on alternate weekends, certain holidays or school breaks, etc. Some families elect for one parent to have sole physical custody while sharing legal (decision-making) custody jointly. One parent would generally only have both sole physical and sole legal custody if the other parent presented some form of harm or danger to the children.

Joint custody: joint physical and legal custody means the parents share the responsibilities for both day-by-day care and living situation of the children, as well as decision-making for the children. Parents must be cooperative with one another and able to perform as a parent team to be able to function well with joint custody.

Bird nest custody: as with baby birds and implied by the name, bird nest custody means the children stay in the pre-separation family home, or in a new family home, and the parents move in and out according to their schedule of visitation. Again, this arrangement, while it can be reassuring and give continuity and a sense of security to the children, requires that the parents collaborate, co-parent and not be at hammer-and-tongs with one another.

Split custody: not used as frequently as other types of custody because it entails separating brothers and sisters, a split custody situation is when each parent has custody of different children.

Making decisions about custody is always going to be very hard for a parent. Inevitably it means giving up some part of time with and rearing of children. The manner in which a custody agreement is reached and the building blocks for the future which are laid in the process are of monumental importance for parents and children. The family law attorneys at Sterling Law Office strongly recommend that parents seek early, experienced legal assistance before tackling custody matters or choices.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., July 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

Family law and divorce law in Michigan uphold some unique tenets on the matter of paternity and fathers’ rights to their children. Understanding the laws is of utmost importance in the case of both biological children and non-biological children, as well as for children born either within or outside of marriage. Establishing the paternity of a child also can both protect a man’s freedom from responsibility for a child whom he did not conceive, or conversely can protect his rights to a parental relationship with a child he did not conceive.

Usually if a man wishes to secure the rights of a father to a child who is born out of wedlock, he must take action upon the birth of the child to lay the groundwork. He should have his name inscribed on the baby’s birth certificate as the father, if it is possible to do so, sign an acknowledgement of paternity with the Friend of the Court, file an action with the family court to establish paternity, or adopt the child if he is not the biological father. For men who are involved as father-figures with non-biological children (for example, with a child born to a girlfriend and conceived with a different man), it’s crucial to legally establish the relationship in order to protect the right to continue a relationship with the child in the future, even if the mother and the man don’t stay together.

Equally, if a man is being pursued for paternity and financial support for a child born out of wedlock which he did not conceive and with whom he does not have nor desire a relationship, a very fast and painless swab taken from inside the mouth can provide the DNA to defeat such a claim.

For children conceived or born during a marriage, or even within months after a divorce, but who were not conceived by the husband, Michigan family law weighs in heavily on the side of holding that the husband is the recognized and responsible father. Clearly, how this situation gets legally interpreted and enforced can have life-altering consequences for the husband whose wife conceives outside the marriage or for the man who conceives a child with a woman who is or recently was married to another man.

The “equitable parent” doctrine of state law holds that a husband who isn’t the biological father may be considered the father for all legal and parental purposes if the husband and child mutually acknowledge a father-child relationship or if the mother has helped develop such a relationship. The husband can choose to have the same rights to that child as if he were the biological parent and could prevent the biological father from gaining those rights.

On the other hand, a husband with a non-biological child conceived or born during his marriage can be prevented from denying the paternity and all responsibilities for that child by the “equitable estoppel” doctrine of Michigan family law. Thus a husband could end up having to take parental rights over a child who is not his and whose entry into this world was none of his choosing.

Generally speaking, Michigan paternity law has evolved with the priority of protecting the best interests of children. It is complex and multi-faceted, however, and for those facing paternity issues, the assistance and case-specific advice of experienced and savvy family law attorneys like those at Sterling Law Office is of paramount importance. While litigating matters of paternity does cost money, considering what clients potentially could stand to lose or to gain, it is one of the wisest investments that can be made.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., June 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

When a custody dispute over minor children occurs, it can be extremely upsetting and financially costly. Such contests are usually between the children’s parents, but may also be between a parent and a grandparent or other relative, a family friend, or the state. To prevail in a custody matter, the more knowledge and preparation you have, the better your chances become. It will not suffice simply to tell the family court referee or judge that you are the best person to raise the children. Your case will need to be well organized and thought-out, documented, and supported by witnesses.

There are 11 factors that Michigan law requires the family court to look at in deciding custody, based upon the best interest of the children. These factors are:

1. The love, affection and other emotional ties between the parties seeking custody and the children.
2. The capacity and disposition of the parties to give the children love, affecton and guidance, and continuation of raising the children in their religion or creed, if any.
3. The capacity and disposition of the parties to provide food, clothing, medical care and other material needs.
4. How long the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity.
5. The permanence of the existing or proposed custodial home.
6. The moral fitness of the parties.
7. The mental and physical health of the parties.
8. The home, school and community record of the children.
9. The reasonable preference of the children, if the court deems them old enough to express a preference.
10. The willingness and ability of each party seeking custody to facilitate and encourage a close, continuing relationship between the children and the other parent.
11. Domestic violence.

Given this basis for custody assignment, the more favorable evidence you can bring of your fitness on the above factors to the family court, the stronger your argument for custody will be. If you wish to generate robust evidence in support of your custody petition, what follows are suggested actions toward that end.

Document your parenting. Keep a daily journal of activity with your children, including regular domestic interaction, to show how engaged you are with the children’s daily care. Record everything you do with and for them, down to small actions like packing the school lunch.

Schedule, show up for, and transport the children. Attend as many as possible events outside the home with your children – school programs and teacher meetings; taking or picking up children at school, and regularly chatting with teachers and office staff; sports and extracurricular activities; doctor, dentist and other appointments. This demonstrates the nurturance you give and also establishes people who can testify to the parenting you do.

Have fun with the children. Incorporate play, vacations and fun outings as much as possible, make photos of these occasions, these are “quality time” events.

Foster your children’s participation in family, volunteer, community service, church and other value- and character-building activities, to show your involvement in their moral education.

Document the opposing party’s strengths and weaknesses in childrearing. It will lend credibility to your case if you acknowledge whatever strengths the other party possesses. Equally, you should cite as objectively, non-emotionally as possible the other party’s childrearing shortcomings, including poor interpersonal skills; any reports the children have made or instances you have witnessed of neglectful, inappropriate or alienating behavior; unhealthy behaviors, mental illness or substance abuse; unsavory, immoral or illegal associates and activities; and, of course, violent or abusive behavior. Never lie about the other party or falsely testify to negative behavior, as this will end up hurting the children and the relationship they have with you.

Document your own childrearing strengths and weaknesses.The former list helps to make your custody argument, the latter gets you ready to address issues or problems the opposing party may raise.

Outline your financial strengths. List the marital assets, when and how each asset came into the marriage. List earned income you contribute, bills you pay, insurance, college savings, investments or other financial assets you provide for the family and the children. If you have had to reduce the time spent at home with your children because you are a breadwinner for the family or enhancing their financial security, be prepared to make the argument that you should not be penalized for this sacrifice and essential contribution to their welfare. Estimate your future earning potential, and outline how this will benefit the children.

Spell out how the children’s daily life will be organized with you — where they will reside, the suitability of the housing and its location, the hours you will be on-hand and when you will be gone for work, who will care for them in your absence, and so forth.

Describe the future educational plans you have for the children. Include how these will be financed, and how you will help the plans to be realized.

Prepare a witness list. Make a roster of those who can testify, if necessary, to your parental skills and commitment. Include relatives, family friends, school personnel, neighbors, doctors, and others. The longer the person has known you and the children, the more powerful their testimony can be.

Think about how it may hurt your case if you act in anger. Consider the harmful effect anger invariably has upon others, especially children; consider how it will be viewed by a judge or other court professionals, and how it might impact their assessment of you. If you need assistance managing your fear and anger so they do not overtake you and dictate your behavior, get it from a professional. Ask your doctor, minister or lawyer for a referral, or call Sterling Law Office, or visit www.divorceconnections.com for educational information and professional referrals.

Finally, find a lawyer who has experience, skills and knowledge in family law, and with whom you can enjoy a comfortable, trusted professional relationship. Just as you would not go to a family doctor for heart surgery, so you should only place your custody matter in the hands of a family law specialist. Interview as many attorneys as necessary until you find one who has a sound history with custody cases, who is focused on negotiating a best-possible agreement rather than eager for a court battle, and in whom you have confidence. In our opinion, nothing is more important to the result of a case, no matter how thoroughly you prepare, than selecting the right, capable lawyer.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., January 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.