There are many ways to form a family. A child’s parents could be married. They could be living together in a committed relationship. Or they could have had a relationship once that is now over. When a child comes unexpectedly, or toward the beginning or end of a relationship, sometimes the hospital staff gets it wrong. They may list the wrong person as the father of the child. Is there a way to legally correct the error? Can you change a father’s name on a birth certificate?
As I write this, it’s Tuesday, and I have already answered this question twice. Unfortunately, the answer to both potential clients was “there’s nothing I can do”. Why? Because in both cases, the child was too old.
Why Does it Matter Whose Name is On the Birth Certificate?
The Revocation of Paternity Act (ROPA) controls whether you can change a father’s name on a birth certificate. That’s because the birth certificate indicates who the legal parents are. In Michigan, when a child is born to a woman, the person married to that woman is listed on the birth certificate as the child’s other parent. Until recently, that person was always a man — the presumed legal father. When the child’s mother isn’t married, both she and the father must sign an Affidavit of Parentage. This is a sworn statement saying both parents believe the man (and it is gender specific) is the biological father of the child. The Affidavit of Paternity establishes the man who signs it as the legal father of the child and allows him to file a complaint for custody, child support, or parenting time, without first taking a DNA test.
What if There is a Typo On the Birth Certificate?
The Revocation of Paternity Act applies when the wrong person is identified as a child’s father. But what if it is the right person, but the wrong name? Mistakes happen, and sometimes a typo can occur. In other cases, a father may have changed his legal name and want the birth certificate to be corrected as well.
In those cases, mothers and fathers can complete an Application to Change or Correct a Michigan Birth Record and file it with the Department of Health & Human Services. You will need to provide a copy of your photo ID and any orders for name change before the typo will be corrected.
What If the Wrong Father is on the Birth Certificate?
If the Affidavit of Parentage is wrong, or if a mother’s spouse isn’t the biological or intended parent of the child, you may need to change the father’s name on a birth certificate. It’s not as easy as you might think. That’s because the birth certificate signals the legal rights of the parents and the child. The U.S. Supreme Court has said that the ability to have and raise children is a fundamental right. So before those rights can be taken away, the person listed on the birth certificate needs to have an opportunity to defend his claim. The Revocation of Paternity Act lays out the process a current or would-be parent must go through to change the father’s name on the birth certificate and revoke paternity.
When Is it Too Late to Change a Father’s Name on a Birth Certificate?
For mothers and would-be fathers, the process is very complicated. It starts with establishing “standing” — the authority to bring the case — and ends with the best interests of the child. Alleged fathers trying to change the father’s name on a birth certificate must show:
- He did not know or have reason to know the woman was married at the time the child was conceived
- He is the biological father of the child using a court-approved three-party DNA analysis
- He, the mother, and the presumed father openly acknowledged that he was biologically related to the child, or
- The presumed father has abandoned the child and failed to provide support for at least two years.
And he doesn’t have much time to do it. The Revocation of Paternity Act only allows mothers or “alleged fathers” to file their complaint within 3 years of the child’s birth or 1 year of the Affidavit of Parentage or Order of Paternity, whichever comes later.
The spouse whose parental rights will be terminated — the presumed father — doesn’t have the same time limits. That’s because it is his rights that are affected, and he is the one least likely to know about the act of conception. The presumed father may file for revocation of paternity within the first 3 years, or any time as part of a divorce action. This gives the presumed father the option to support the child and keep the family together, and still step away if the marriage falls apart.
What If You Miss the Deadline?
There is a very narrow exception to the 3 year time limit in the Revocation of Paternity Act. It allows would-be parents to file a petition if they have a good reason to to have filed earlier (maybe they were out of the country or in jail, or did not have access to the child), and can provide evidence to show they are likely to succeed in the case. Basically, an alleged father who missed the 3-year statute of limitations has to prove his case before he is even allowed to appear in court.
This is hard to do. In fact, most family law attorneys won’t even attempt these petitions unless there are compelling reasons to try. Even then, it is up to the judge assigned whether to grant the extension. If you need to change the father’s name on a birth certificate, you are better off acting as soon as you can, rather than waiting until there is trouble. If you do, you may find out you have missed the deadline and there is nothing to be done.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents parents in Revocation of Paternity actions. If you need to change the father’s name on a birth certificate, contact Schmidt & Long today to schedule a consultation.