HUSBAND VS BIOLOGICAL FATHER IN MICHIGAN


Date12/18/2011

By Flint Divorce Bankruptcy Attorney Terry Bankert. Downtown Flint Lawyer 235-1970 http://www.attorneybankert.com/

FLINT OR MICHIGAN FATHERS CHILD CUSTODY AND PARENTING TIME RIGHTS

Michigan Child Custody and Parenting time Law keeps Matt Dykema from seeing his young daughter and having child custody and parenting time, he cannot be the father that DNA says he is.[see 1]
http://goodmorningflint.blogspot.com/

FATHERS HAVE A VARIETY OF PRESSURES WHEN THEY TRY TO SEE THEIR CHILDREN

FOR INSTANCE – Kate Gosselin shares custody of her eight kids with their father Jon Gosselin . While a divorce can be messy, it is always encouraging when the parents find a new partner who is willing to, not only accept them, but also their children. Apparently Jon has found that and if a new report is to be believed, Kate is slightly jealous that her kids have taken so well to his girlfriend.[4]

IT JUST FEELS HORRIBLE AND UNFAIR THAT A CHIULD DOES NOT GET TO KNOW THEIR BIOLOGICAL FATHER IF HE STEPS FORWARD UNDER MICHIGAN LAW!

Good Morning Flint! is the daily blog of Flint Divorce lawyer Flint Bankruptcy Attorney Terry Ray Bankert 810-235-1970 If you have legal question call or contact through http://www.attorneybankert.com/

Under Flint Divorce and Michigan divorce and child custody Law today the current husband is presumed by the law to be the “father” of a child when the married party may not have had contact for years. Is that fair?

The Biological Flint or Michigan father can not even get his case heard in a Michigan Family Law Court. The plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). This requirement frequently creates a problem of standing if a man seeks to establish his paternity when the mother was married to another person during any part of the pregnancy.[2]

see here; http://goodmorningflint.blogspot.com/2011/12/did-you-know-that-if-dna-shows-you-to.html

WHAT IF DNA PROVES HE IS THE FATHER

A DNA test proves Matt Dykema is the girl’s father, but the baby’s mother was married to another man when the child was born. The two have since divorced.[1]

CHILD BORN IN THE MARRIAGE IS OF THE MARRIAGE

News articles say that A 1956 Michigan law says a child born during a marriage is a product of the marriage. Judges follow that law when deciding custody issues. It gives the ex-husband more rights than the biological father.[1]

More specifically the rights of a biologoical father not married to the mother to see the child do not exist in Michigan. The Child Custody Act of 1970, MCL 722.21 et seq., is no longer used to determine paternity. A putative father may not seek custody or parenting time under the Child Custody Act unless there is first an acknowledgment of paternity or an order of filiation under the Paternity Act. Hoshowski v Genaw, 230 Mich App 498, 584 NW2d 368 (1998); Afshar v Zamarron, 209 Mich App 86, 530 NW2d 490 (1995).[2]

DID YOU KNOW -In divorce proceedings, the general rule in Michigan is that the court does not have the power to litigate the rights of persons other than the husband and the wife. Yedinak v Yedinak, 383 Mich 409, 175 NW2d 706 (1970). In addition, the authority of the court is purely statutory, Flynn v Flynn, 367 Mich 625, 116 NW2d 907 (1962), and no statute provides for determination of the paternity of a third party as part of a divorce action, Pruitt v Pruitt, 90 Mich App 230, 282 NW2d 785 (1979). However, the court may determine the paternity of the husband during such a proceeding. Serafin v Serafin, 401 Mich 629, 258 NW2d 461 (1977); Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987). A court must have in personam jurisdiction over the husband to make a paternity determination pursuant to a divorce decree. Gonzales v Gonzales, 117 Mich App 110, 323 NW2d 614 (1982).[3]

MICHIGAN PRESUMES THE CHILD TO BE OF THE HUSBAND AND KEEPS ALLEGED BIOLOGICAL FATHERS OUT.

According to statute and caselaw, there is a strong presumption that any child conceived or born to a married couple before commencement of a suit for divorce is legitimate; this presumption may be rebutted only by clear and convincing evidence. Raleigh v Watkins, 97 Mich App 258, 293 NW2d 789 (1980); Johnson v Johnson, 93 Mich App 415, 286 NW2d 886 (1979). Michigan courts allow a husband and wife to testify regarding a child’s paternity. Serafin. [3]

A finding of fact in a divorce decree that a child was born of the parties’ marriage establishes the child’s paternity. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986). Once a child is determined to be a child of the marriage in a divorce judgment, the doctrine of res judicata bars relitigation of paternity, even if the issue was not contested in the divorce. In re Cook Estate, 155 Mich App 604, 400 NW2d 695 (1986). In Cook, a mother whose deceased child was declared to be a child of the marriage in the divorce judgment was barred from asserting in a subsequent proceeding that her former husband was not the child’s biological father. In Rucinski v Rucinski, 172 Mich App 20, 431 NW2d 241 (1988), a father’s attempt to deny paternity of a child born during a marriage that ended in divorce was barred by res judicata. Since he had not denied paternity during the divorce proceedings, the divorce judgment and support order constituted an adjudication of paternity.[3]

IN DYKEMA MOM THEN DIVORCED AFTER THE BIRTH, EX HUSBAND WILL NOT GIVE UP HIS RIGHTS.

Matt Dykema and his attorney have requested the woman’s ex-husband relinquish his rights but, so far, he has refused. It has Dykema and his Muskegon attorney Chris Houghtaling looking to Lansing for help — and they might get it.[1]

BILL PENDING TO GIVE BIOLOGICAL FATHER RIGHTS

In December, the Michigan Senate unanimously approved four bills that would update the old law. It’s the work of Senator Rick Jones, a Republican from Eaton Rapids. [1]

JUDGES TO HAVE MORE FLEXIBILITY

Jones says his legislation would allow judges more flexibility to hear and rule on cases like the one in Ottawa County, ultimately allowing them to make decisions based on what’s best for the children.[1]

LEGISLATURE TO ARGUE ISSUE IN 2012

The House Judiciary Committee is expected to take up the bills in 2012. [1]

WHAT THE FATHER NEEDS IS AN ORDER OF PATERNITY

The stated purposes of the Michigan Paternity Act (Paternity Act), MCL 722.711 et seq., are to confer on circuit courts jurisdiction over proceedings to compel and provide support of children born out of wedlock; to prescribe the procedure for determining such liability; to authorize agreements for furnishing such support and to provide for enforcement; and to prescribe penalties for the violation of certain provisions of the Paternity Act. Most paternity actions in Michigan are brought under the Paternity Act. If paternity is not voluntarily established, the party seeking a finding of paternity must file suit in the family division of the circuit court. The mother, the alleged father, or the Department of Human Services (DHS) may bring the action. Genetic testing is available as a valuable and objective means of resolving paternity cases before trial. If a determination of paternity is made, the court must enter an order of filiation. The order of filiation must provide for the support of the child, reimbursement of the medical expenses incurred in the child’s birth, health care insurance coverage when it can be obtained at a reasonable cost, and support for the period before the order was entered.[2]

The purpose of the Paternity Act is to provide for support of children born out of wedlock. Van Laar v Rozema, 94 Mich App 619, 288 NW2d 667 (1980); Tuer v Niedoliwka, 92 Mich App 694, 285 NW2d 424 (1979); Smith v Robbins, 91 Mich App 284, 283 NW2d 725 (1979); Boyles v Brown, 69 Mich App 480, 245 NW2d 100 (1976). The act confers jurisdiction on the circuit courts to compel and provide support for children born out of wedlock, to set forth procedures to determine liability, to authorize agreements providing for support and enforcement of such agreements, and to prescribe penalties for violation of certain provisions of the act. MCL 722.711 et seq.[2]

722.714 Paternity proceeding; parties; venue; action not required; commencement of action; statute of limitations; initiating and conducting proceedings; utilization of child support formula; verification of complaint; charge; summons; default judgment; genetic paternity testing; next friend or guardian ad litem; rights of indigent defendant; order of filiation.

SOURCES THIS ARTICLE

[1]
http://www.wzzm13.com/news/article/190315/2/Biological-father-seeks-help-gaining-parental-rights

[2]

Michgian Family Law ch 21 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=21

last updated 12/09/2011

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