Tradition would have you believe that when a woman announces she is pregnant the first thing to do is congratulate her husband. But what if you had nothing to do with the pregnancy? What if it is just as much a surprise to you as everyone else? If your wife just had a baby that’s not your,s you may find yourself asking “now what”?
The modern family can take many different forms. Blended families with stepchildren and half-siblings have been on the rise for decades. Unmarried families are common now too. Even when your family structure follows the traditional model, you could still find yourself faced with some unexpected complications if your wife had a baby that isn’t yours. As the husband of the mother, you have options. Which one is best for you is a personal decision that only you can make.
Option 1: Be The Dad
Biology doesn’t automatically make a father. Even if you were not the one who conceived the child with your wife, you can still provide a loving home to the new baby. Maybe the child was conceived before you were married, or during a period of separation. Maybe you are in an open relationship. Or maybe you care more about your family than you do about a moment of indiscretion. Legally, if you are married to the birthmother of a child when that child is conceived or born, you are presumed to be that child’s legal father. If that arrangement works for you, you don’t have to do anything further, from a legal perspective, to be the dad.
Some families even enter into these arrangements intentionally. If an intended father is unable to conceive for whatever reason (including trans men, disabled individuals, or couples facing infertility), a couple may choose to use a sperm donor and in-vitro fertilization to conceive. If you and your partner choose a relative or friend to assist in conception, a known donor agreements can help ensure that everyone — including the courts — knows who is meant to be the dad. If you choose an unknown donor (usually through a sperm bank), Michigan law says you, the husband, are entitled to be named the father on the child’s birth certificate, and will have all the same legal rights as if you were the biological father.
The one thing to remember if you decide to be the dad: a biological father could make your life difficult in some circumstances. The Revocation of Paternity Act presumes that a husband is the father of his wife’s children, but it also allows the mother or an alleged father (someone who by his behavior could be the biological father of the child) to file a petition, asking the court to terminate the husband’s rights and declare him to be the legal father of the child. He must generally do this before the child turns three and will have to show that he didn’t know or have reason to know the child’s mother was married at the time of conception. This is why known donor agreements are important. They show that the biological father explicitly knew you would be the father once conception is done.
Option 2: Revoke Paternity
Just because you are presumed to be the father doesn’t mean you want to be. Particularly when the conception is unexpected, it can often create hard feelings, to put it lightly. If you would rather not take on the responsibility to care for your wife’s child with another man, the Michigan Revocation of Paternity Act allows you to file a petition within 3 years of the child’s birth to be removed as the legal father. Doing so can allow the court to establish paternity with the child’s biological father and enter a child support order against him to help your wife support the child. The requirements for a presumed father to file a petition to revoke paternity are easier than for either the mother or the alleged father (because you had nothing to do with conception). However, you will need to submit to a DNA test to prove you are not biologically related to the child.
Option 3: Wait and See
Presumed fathers also have another option not available to mothers or alleged fathers: they can wait to see how the relationship pans out. A recently published Michigan Court of Appeals case, Taylor v Taylor, says that a husband and presumed father can ask the court to revoke paternity as part of a divorce action, even after the 3 years have come and gone. In other words, you can try and make it work with your wife, but if the relationship breaks down anyway the court won’t hold it against you later. You will be allowed to file for Revocation of Paternity at the same time as your divorce.
However, just filing the petition isn’t automatically enough. The Revocation of Paternity Act lays out several factors for courts to determine whether it is in the child’s best interest to replace one dad with another. These factors focus on each potential father’s relationship with the child, and the effect the change will have on his or her living situation and support. If you have been the only dad a child has ever known for several years, you and your family court attorney will have more work to do to show that you should be allowed to step away now that the relationship has broken down.
When family situations get complicated, the legal implications of those decisions get more complex as well. If your wife just had a child that’s not yours, you should take the time to meet with a family law attorney to understand your options, and the consequences of each choice. The longer you let things go informally, the harder it may be to get the result you want later on.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She handles divorce, custody, and Revocation of Paternity actions in Oakland, Wayne, Macomb, and Washtenaw Counties. If your wife just had a child that’s not yours, contact Schmidt & Long today to schedule a consultation.