What are the Rights of a Biological Father if the Mother is Married to Another Man?

By: Jeanne M. Hannah, J.D.

Copyright 2006 Jeanne M. Hannah. All rights reserved.

Jeanne M. Hannah is a family law lawyer located in Traverse City, Michigan, who handles divorce, child custody, paternity, adoption, neglect, and other family law matters, and who assists fathers and mothers to exercise their rights to custody and parenting time.

         

This question is answered differently under Michigan law than it is under the laws of States that have enacted the Uniform Parentage Act (UPA, and States that have some judicially created exception like the ones in the UPA. In Michigan the Paternity Act and decisions of the court of Appeals and the Michigan Supreme Court deny standing to all biological fathers (not husbands) when a child is conceived or born during a marriage.

Consider the most recent Michigan case, decided February 16, 2005 (Numerick v Krull). The biological father's rights were effectively destroyed when Mom wed someone else after she and dad separated but before the child was born. If this is a sham marriage used to cut off Dad's rights, what happens when or if Mom divorces this husband? In this day and age people often move and lose touch. Bio Dad may never know if Mom moves to a state where she can divorce Dad and he can disestablish paternity. Bio Dad may never have the opportunity to parent or co-parent his child.

While it's true that these cases result from messy lives, are family lawyers supposed to turn away and ignore what might be in the best interests of a child to avoid getting our hands dirty? I don't think so.

What the UPA does with respect to children born or conceived during a marriage is really no different from the analysis we do under the Adoption Code where efforts are made to terminate a dad's parental rights so the child may be adopted. There we look at the relationship of the father to the child. Has the dad formed a substantial parent-child relationship with the child and has he provided regular and substantial support for the child?

The importance of allowing biological fathers to have standing arises from recent efforts in Michigan to enact legislation that would deal with the issue of "paternity fraud." The proposed legislation would allow a male to disestablish paternity and escape financial responsibility for a child or children born during his marriage to his wife. If we amend the Act in this piecemeal manner, then what happens to the child(ren)? They may be left without financial support and paternal guidance, often from the only father they have known.

If Husband has known that the child was not his for an extended period of time (the UPA sets a limit of 2 years) and he has not challenged it within the 2-year period, then he would not be allowed to deny paternity. It's one thing to deprive a putative father the right to establish his paternity and quite another to then turn around and deny the child the father he/she has been raised by.

Moreover, what is so different about a child having a relationship with her father AND her step-father - with alternate weekends and holidays and summer parenting, in a "normal" family (at least 50% of Michigan children live in such a family) - and a child having the same kind of relationship with a biological father?

Two cases that illustrate how the individual facts should determine whether a putative father should have standing were resolved in California and serve to illustrate what would happen under the UPA - what cannot happen under current Michigan law.

In one case, the mother left her husband. The biological father, Brian, and the mother, Ginger, lived in a family-like relationship during the pregnancy. Brian was present at the birth, and his name appeared on the birth certificate and baptismal records.  They lived together until the child was about one year old. Even after their separation, the father had substantial parenting time with the child. However, when Ginger reconciled with her husband, she cut off all contact between Brian and the child.

The trial court found that Brian and the child had formed a substantial parent-child relationship.  As a result, the Court granted him standing to establish his parentage. (This is not unlike our test for termination of a putative father's rights under the adoption Code). See,  Brian C. v. Ginger K. (2000) 77 Cal. App.4th 1198 [ 92 Cal.Rptr.2d 294]. 


Contrast that case with Rodney F. v. Karen M.,  61 Cal.App.4th 233 (1998). In that case, Rodney had an affair with Karen, a married woman. He filed an action to establish paternity of her child. But the trial court applied the conclusive presumption California's Family Code and found Karen's husband to be the father of the child.

Karen and her husband were married in 1985. Their marriage was troubled and Karen had twice filed for divorce without finalizing a divorce. Karen and Rodney had a sexual affair during her marriage, and the two rented housing where Karen spent a considerable amount of time while her husband worked on an offshore oil platform.

Karen became pregnant and told her husband she was pregnant a few months later. She also told him about her affair with Rodney F. Karen told Rodney she was pregnant, and she later told the court that he really did not care. Karen delivered a girl in March 1993. After her birth, the baby resided with Karen and her husband. Rodney F. had no contact with the baby. That was the essential deciding factor in the court's denial of standing to Rodney - despite his constitutional arguments and despite the fact that  DNA blood tests showed that Rodney, who registered a paternity index of 195 and a probability of 99.5 percent, was the baby's biological father.

The judge made findings of fact that Karen was cohabiting with her husband who was neither impotent nor sterile at the time the child was conceived. Then the court applied the conclusive presumption in the adoption code and held that Karen's husband was conclusively presumed to be the baby's father.  "Where, as here, the conclusive presumption of paternity applies under the law, it is irrelevant that the biological father can prove his paternity or even that all parties to the proceedings may concede that plaintiff is the biological father."

This was a harsh result, but reflects the general tenor of decisions in 1995 and even later in most States. One of the deciding factors was the fact that the child had always lived in an intact family. Here, the child was conceived and born during Karen M.'s marriage to her husband. There had been absolutely no relationship forged between the child and Rodney. Karen and her husband were the only parents the child had ever known. The court said, "It is precisely that type of relationship that section 7540 is designed to protect from interference. The state has a legitimate interest in doing so."

In addition, the court opined that it may serve no good purpose and may not be in the best interest of the child to create what in essence is a fictional family. Praising Karen M.'s husband for his willingness to raise this child as his own, the court condoned this married couple apparently pretending that the child was their offspring.

But the court also recognized that it may also be beneficial for the child to have a relationship with her biological father. The court stated that the familial stability the court was preserving was certainly questionable by virtue of the fact that the case was even before the court. The court opined that it was questionable whether the integrity of the "family" would be jeopardized if visitation with Rodney were permitted, simply because all the parties know the identity of the biological father.

I know that there are many family lawyers who aren't interested in paternity issues and would "leave sleeping dogs lie." In my humble opinion, the time has come to consider legislation that would actually operate to protect children from their parents' messy lives -- that has the capacity to offer children substantial parent-child relationships and parental support.

"Paternity fraud" -- those proponents who would protect men from having to pay support for children who are not their biological issue might consider the importance of protecting fathers' rights to continue a substantial parent-child relationship rather than allowing a mother's whim to control (for example, reconciliation with husband, cutting off the putative father's parental relationship with a child).
 

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Jeanne M. Hannah welcomes you to contact her regarding any family law lawyer issue, including, but not limited to divorce, child custody and parenting time, child and spousal support, property settlement, pre-nuptial and post-nuptial agreements, paternity, adoption, neglect, and other family law matters. You can contact Ms. Hannah by telephone, E-mail, fax, or at the address listed above.

Jeanne M. Hannah, a family lawyer located in Traverse City, Michigan, represents clients in Grand Traverse County, Benzie County, Leelanau County, Kalkaska County, Antrim County, Emmet County, and other selected counties throughout Michigan.  Copyright 2005 [Jeanne M. Hannah]. All rights reserved. Revised: 11/11/09

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Jeanne M. Hannah, Family Lawyer
Postal address:5922 Deer Trail Drive, Traverse City, Michigan 49684 E-mail: jeannemhannah [at] charter.net
 

Practice Areas: Divorce  Custody  Parenting Time  Child Support Post-Judgment Modifications  Paternity  Adoption  Personal Protection Orders  Spousal Support  Property Distribution  Pre-Nuptial / Post-Nuptial Agreements Estate Planning Guardianships/Conservatorships  Neglect/Abuse Cases 

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Copyright 2005 Jeanne M. Hannah. All rights reserved. Last updated November 2009

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