Society has certainly changed over the last fifty years to the point where it is more common for children to be born to parents out of wedlock. The stigma around this has largely evaporated and the legal barriers of illegitimacy have been swept away. Establishing legal paternity is accomplished easily enough by executing an acknowledgment of parentage with the mother and filing the document with the State of Michigan. If the father and mother are separated, then the father may soon have a legal responsibility to pay child support. But what rights does the unmarried father have to enjoy custody and parenting time with his child?
“An acknowledgment signed… establishes paternity… [and] [t]he child who is the subject of the acknowledgment shall bear the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage and shall have the identical status, rights, and duties of a child born in lawful wedlock effective from birth.” MCL 722.1004. However, this statute does not grant the acknowledging father the same legal rights as a father whose child is born in wedlock. Eldred v Ziny, 246 Mich App 142, 149; 631 NW2d 748 (2001). While the Acknowledgment of Parentage Act “establishes paternity, establishes the rights of the child, and supplies a basis for court-ordered child support, custody, or parenting time without further adjudication under the paternity act,” the Child Custody Act provides “the exclusive means of pursuing child custody rights”. Id at 148.
MCL 722.1006 states “[a]fter a mother and father sign an acknowledgment 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 the mother is endowed with sole legal and physical custody of the child from the onset. Physical custody means that the child has a right to live with that parent. Legal custody means that the parent has the right to make and/or participate in medical, educational and religious decisions for the child. In addition, the lack of a parenting time order means that the father’s rights to see the child rest solely at the discretion of the mother. If the mother is unwilling to permit access to the child or permit the father to participate in decision-making, then the father will have no choice but to seek a custody and parenting time order from the circuit court.
MCL 722.1006 further states that “[t]his grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.” The mother’s default position of sole legal and physical custody is by operation of law, not judicial determination. Therefore, a father seeking custody rights is not required to demonstrate proper cause or a change in circumstances to modify the custody order as if he was filing a change of custody motion after it was previously set by a judge. Sims v Verbrugge, 322 Mich App 205; 911 NW2d 233 (2017). From time to time, some family court judges forget this legal technicality and compel the father to produce proper cause or change of circumstances.
In an original action, the family court judge must consider the best interests of the child and determine by a preponderance of the evidence how physical and legal custody should be awarded to both parents. Pursuant to MCL 722.23, the “best interests of the child” means ” the sum total of the following factors to be considered, evaluated, and determined by the court:”
- (a) The love, affection, and other emotional ties existing between the parties involved and the child.
- (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- (f) The moral fitness of the parties involved.
- (g) The mental and physical health of the parties involved.
- (h) The home, school, and community record of the child.
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
The father should not assume that the court will simply grant sole physical and legal custody of the child to the mother due to gender bias. In fact, the law commands the court to explicitly consider a joint custody arrangement in making its decision. “At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request.” MCL 722.26a(1). Furthermore, the law presumes that it is “in the best interests of a child for the child to have a strong relationship with both of his or her parents.” “Except as otherwise provided in this section, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” MCL 722.27a(1). The legislature and the courts have realized that fathers play a very important role in the lives of their children and should be included to the extent that is reasonable possible.
If you are an unmarried father in need of a custody and parenting order, the aggressive and experienced family law attorneys at Kershaw, Vititoe & Jedinak PLC can guide you through the judicial process and help you achieve a result that maximizes your time with your child. Contact our office and schedule an appointment to meet with one of our skilled lawyers today.