Do You Need a Paternity Case or a Custody Action?

Filing the wrong kind of family law action can get your case dismissed and leave you unable to exercise your parental rights or collect child support. But the difference between a paternity case and a custody action can seem arbitrary, causing lots of people to make the wrong choice. Find out what you need to know to file the right action the first time.

There was a time when family law simply meant divorce. But as modern family situations have grown more complicated, more parents are having children outside of a traditional marriage. When unmarried parents split up, you often need a judge to determine your rights and create a custody schedule that works for you and your former partner.

But that legal process can come to a halt if you file the wrong kind of action. Unmarried parents may need to file under the Paternity Act or the Child Custody Act. The difference is a piece of paper you may not even remember signing: the Affidavit of Paternity (also called an Acknowledgment of Parentage).

DID YOU SIGN AN AFFIDAVIT OF PATERNITY?

Many mothers and fathers don't remember signing an Affidavit of Parentage. This is a one-page document usually signed in front of a notary at the hospital when the a child is born. It states that the parents believe the man listed is the natural father of the minor child. Many hospitals require an unmarried parent to sign an Affidavit of Paternity to be listed on the child's birth certificate.

Legally speaking, the Affidavit of Paternity establishes the man's parental rights related to a child and allows him to seek a custody order from the court without taking a DNA test. It can be set aside through a Revocation of Paternity Action. But unless that happens, the person signing an Affidavit of Paternity is automatically considered the legal father of a child, with all the related parental rights and obligations.

FILING A CHILD CUSTODY COMPLAINT

If you have signed an Affidavit of Paternity, the proper legal action to determine custody, child support, and parenting time is a complaint under the Custody Act. When you file that action, the Friend of the Court will investigate both parents' income and the facts connected to the Best Interest Factors regarding custody and parenting time. Your family court judge will usually enter an order based on that investigation and the recommendation that results.

DO YOU NEED A PATERNITY TEST?

Many people mistakenly believe they already have parental rights simply because they have been living with and providing for a child. However, if you didn't sign an Affidavit of Paternity, your child custody complaint could be dismissed. Instead, you will need to file a Complaint for Paternity instead. This signals to the court that you need a DNA paternity test to establish who is the natural father of the child. Until the court enters a Paternity Order, a person cannot be awarded any visitation, even on a temporary basis. If you file the wrong kind of action it could cause you to be cut off from your children for months as the court sorts out the paperwork.

The distinction between a custody action and a paternity case may seem arbitrary, but it can make a big difference in how your matter will progress. Don't take a chance that your case will be dismissed. Speak to family law attorney Lisa J. Schmidt of Schmidt & Long, PLLC, in Ferndale, Michigan. She will help you file the right family court action and get you the custody and visitation schedule that is best for you and your family. Contact Schmidt & Long, PLLC, today to schedule a free initial consultation.