Biological father get custody of child born to married woman


Recently a biological father filed a petition to gain custody of a minor child born to a married woman. Prior to n06/12/12 he could not have done this but there was a change in the law by Michigan Public Act 159 of 2012 which allowed it. In the statute he is called the alleged father

For the alleged father to succeed the minor child must be ruled by the court to be born out of wedlock by revocation of the paternity rights of the husband. He is called in the statute the presumed father.
Once this is done the court may enter an order of filiation or paternity of the alleged biological father and the child. In this case the child was over 3 years of age. But there is an age enhancement for the first year this law is in effect. The child for the first year could be 17 years old but less than 18.

The new law also called MCL 722.1431 cited as the “revocation of paternity act” gives standing in these revoking paternity causes to the alleged father of the minor and authorizes the court to review and revoke the paternity of the minor child with the presumed father and enter an order of filiation for an alleged father

That 722.1441 Sec. 11.(5) An action under this section may be brought by a complaint filed in an original action as was done here in the State of Michigan , Genesee County Family Court, as appropriate under this act and rules adopted by the supreme court.

That in this case the Plaintiff is a resident of the State of Michigan and County of Genesee and has been so for a period of time exceeding 180 prior to the commencement of this action.

Proper Venue for Original Action

That 722.1443 Sec. 13.(1) An original action under this act shall be filed in the State of Michigan, Genesee County Family Court 7th Circuit Court in which the mother of the minor child, resides. She lives in Genesee County.

Moving Party is Movant

That movant is 722.1433 Sec. 3.(3) “Alleged father” which means a man who by his actions could have fathered the child.

That the minor child in question in this cause a Revocation of Paternity action is a resident of the State of Michigan And Genesee County.

History of Parties and the Minor Child

. That the minor child of this cause was conceived and born during the marriage of Mother and her husband.

That the Plaintiff alleged biological father in this cause of action was unaware of the Defendant’s marriage as she failed to inform the Plaintiff.

.
In this case the alleged biological father (Plaintiff) and mother (Defendant) lived together when the the child was born.

That year after birth the minor child was left in the sole care and custody of the Plaintiff-alleged biological father.

That on last year the Defendant-Mother granted to Plaintiff-Alleged Father a child medical consent form for the minor child.

That the minor child has lived for most of the child’s life with the Plaintiff-Alleged biological father.i

That the Plaintiff-Alleged Father testified the presumed father, thought he was divorced and was incarcerated during the time the minor child would have been conceived.

. That since birth the minor child has lived with the Defendant-Mother for minimal time and the majority of the time with the Plaintiff-Alleged Father.

That on the birth certificate of the minor child as father is named the mother husband.

Presumed Father

That the name and residence of the Presumed Father Flint MI.

That the Mother of the child in question has as her of residence Genesee County, Michigan.

21. That the date of the marriage of the Mother and presumed father of the minor child in question is prior to the birth of the minor child..

22. That the parties, mother and presumed father are still married.

Threshold for Determination of Paternity Filed by the Alleged Father

23. That using 722.1441 Sec. 11.(3) …(That)…child i has a presumed father a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by an alleged father and any of the following applies:

(a) All of the following apply:
(i) The alleged father i did not know or have reason to know that the mother n was married at the time of conception of the minor child.
(ii) The presumed father , the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.
(iii) The action here is not filed within 3 years of the child’s birth .The requirement that an action be filed within 3 years after the child’s birth does not apply here because it is an action filed on or before 1 year after the effective date of this act.
(iv) The Movant asks that this court determines the child’s paternity as is required.

That 722.1443 Sec. 13.(5) requires the court tol order the parties to an action or motion under this act to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under this act. Blood or tissue typing or DNA identification profiling shall be conducted in accordance with section 6 of the paternity act, 1956 PA 205, MCL 722.716.

That 722.1443 Sec. 13.(5) The results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under this act.

Court Action Available After Threshold

That 722.1443 Sec. 13.(2) In an action filed under this act, the court may (c) Determine that a child was born out of wedlock. and (d) Make a determination of paternity and enter an order of filiation as provided for under section 7 of the paternity act, 1956 PA 205, MCL 722.717.

Court May Decide Not to Revoke Paternity

That 722.1443 Sec. 13.(4) A court may refuse to enter an order setting aside a paternity determination or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child. The court here will find that revoking the presumed father’s paternity and with an order of filiation awarding paternity to the alleged father is clearly in the child’s best interest since among other reasons has been the principal caretaker of the minor child since birth.

That 722.1443 Sec. 13.(4)The court shall state its reasons for refusing to enter an order on the record.

That 722.1443 Sec. 13.(4)The court may consider the following factors:
(a) Whether the presumed father is estopped from denying parentage because of his conduct. Here the presumed father has was incarcerated during the conception of the minor child and has not exercised parental contact.
(b) The length of time the presumed father was on notice that he might not be the child’s father. The presumed father when contacted last year by the alleged father did not know of the minor child. He acknowledged he was incarcerated during conception and agreed that plaintiff is the biological father. Mother gave the child the last name of the biological father the alleged father and placed the minor child with the biological father to raise.
(c) The facts surrounding the presumed father’s discovery that he might not be the child’s father. He was told a year ago and acknowledged he could not be the father because of his incarceration.
(d) The nature of the relationship between the child and the presumed or alleged father. The alleged father is the primary caretaker of the minor child.
(e) The age of the child. 3 plus years date of birth 10/06/2008.
(f) The harm that may result to the child. The child will suffer emotional harm if he cannot continue to reside with the alleged father.
(g) Other factors that may affect the equities arising from the disruption of the father-child relationship. Father has lived with the minor child and been primary caretaker for most of the minor child’s life.
(h) Any other factor that the court determines appropriate to consider. That movant recommends the court use the best interests of the child factors found at MCl 722.23

Determination of Paternity

That 722.1445 Sec. 15. If an action is brought by an alleged father, who proves by clear and convincing evidence that he is the child’s father, the court may make a determination of paternity and enter an order of filiation as provided for under section 7 of the paternity act, 1956 PA 205, MCL 722.717.

In this case the Plaintiff alleged biological father met this burden and is now by court order the father.

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