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Unequal rights for a married vs. an unmarried parent for police assistance to retrieve child

If the parents are married, the law automatically presumes that the husband is also the father of the child. As such, police agencies consider married parents to each have equal rights to their children. Police agencies will generally not get involved in disputes between married couples regarding which parent should have the child. A police officer will simply say that it is a “civil matter” and to seek a court order. If the parents are NOT married to each other, Michigan law allows a man to be legally recognized as the father of a child if both he and the child's mother sign and file with the State an "Affidavit of Parentage" (“AOP”) form. This form is legally binding and puts the world on notice that both the mother and father recognize that the man is the father of the child. The father’s name will be on the child’s birth certificate.

However, the same law provides that after a mother and father sign an Affidavit of Parentage, “the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court.”

This means that for parents who are not married, the signing of an AOP and the father’s name on a birth certificate do NOT grant custody of the minor child to the father. Unless the father obtains a court order, the police can and will refuse to recover the minor child of a father not married to the mother.

On the other hand, the police do have authority to recover a minor child of a mother not married to the father who has no court order for custody (even if the father has an AOP and his name on the birth certificate).

Attorney General Mike Cox wrote (in part): "It is my opinion,…, that after a mother and father sign an acknowledgment of parentage (“AOP”) concerning a child born out of wedlock, in accordance with the Acknowledgment of Parentage Act, MCL 722.1001 et seq, the mother has custody of that child unless otherwise determined by a court or otherwise agreed upon by the parties, in writing. A police agency may rely on a duly executed acknowledgment of parentage as establishing the mother's custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise.

Download AG Opinion Re Acknowledgment of Parentage Act :

As such, for a mother trying to keep her out-of-wedlock child with her or have the child returned to her, it should suffice for her to show the AOP and the AG Opinion to the police with a request for enforcement. The above link can be opened, printed, and carried.

Fathers are not without recourse! If father and mother have signed an AOP, father can file a Complaint to Establish Custody, Parenting Time, and Support.

Contact Sterling Law for help on these or other legal needs. 231-486-0559 /

The information in this post is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Sterling Law or the individual author nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the reader’s licensing jurisdiction.

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