You and your partner are celebrating the birth of your new child. Mother and baby are healthy, and you have been there every step of the way. But because you aren’t married, the hospital staff wants you to sign a paper called an Acknowledgment of Parentage. What is it? And what happens after the Acknowledgment of Parentage is signed?
Unmarried Parents and the Acknowledgment of Paternity Act
When a child is conceived or born during a marriage, the mother’s spouse is assumed to be the legal parent of the child. But what about when the parents aren’t married? The Acknowledgment of Parentage Act gives parental rights to the biological fathers of children “born out of wedlock” — that is, to unmarried parents. The law says:
“If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage.”
A signed acknowledgment (sometimes also called an Affidavit of Paternity) establishes a father’s paternity of the child, allows his name to appear on the birth certificate, and gives him the right to seek custody, parenting time, or child support in court. In other words, it makes him the legal father of the child.
Even without a formal custody order, the legal rights established by an Acknowledgment of Parentage give a father the right to receive medical and education information about his child. Many unmarried couples manage to co-parent their children together for years without anything more formal than the Acknowledgment of Paternity and a mutual agreement to care for their child.
Who Gets Custody After the Acknowledgment of Paternity is Signed?
When unmarried parents break up, the question of custody suddenly becomes important. According to the Acknowledgment of Paternity Act, the mother of a child born out of wedlock automatically receives initial custody. Unless the parties agree otherwise, the mother is the one with authority to make important decisions about the child’s care, upbringing, education, and medical treatment.
The law assumes that the child will live with the mother as well. While some parents are still able to arrange visitation and voluntarily keep one another informed about the care of their children, others will need the court to intervene, creating a new normal for both parents and children.
How Do You Get the Court to Grant Fathers Custody?
Increasingly, the world is not so simple. The assumption that mothers will be primary custodians of their children is based on gender roles that are often outdated, particularly among families that opt not to marry. Mothers may be just as involved in their careers as their families. Children may be used to coming home to their fathers, and will benefit from a joint custody arrangement that keeps both parents close. Other times, alcohol, substance abuse, mental health challenges, or even just personality means that a mother isn’t well suited to make the day-to-day decisions about a child’s care. In some extreme cases, it may be best that mom isn’t involved at all.
But if an Acknowledgment of Parentage gives initial custody to the mother, how do fathers get the court to give them custody of their children?
Sims v Verbrugge: The Effect of Initial Custody
A recently published Michigan Court of Appeals case, Sims v Verbrugge, explains. The parents in Sims signed an Acknowledgment of Paternity the day their daughter was born in 2012. In 2013, the parties broke up, but they lived close together and were able to maintain regular visitation. Eventually, the prosecutor’s office initiated child support proceedings, likely because Sims began receiving public assistance.
Then, in 2015, Sims moved an hour away from Verbrugge. He took the matter back to court, asking the judge to set a parenting time schedule, since the distance was making it harder for the parties to maintain the same degree of cooperation. The court did so, awarding Sims primary physical custody and Verbrugge regular parenting time, without deciding legal custody. Then in 2016 Sims wanted to move even further — to Colorado. When she listed her home for sale, Verbrugge filed another motion, asking the court to award him legal and physical custody.
The case demonstrates the effect of the initial custody award under the Acknowledgment of Parentage Act. Parents without an established custodial environment or order are entitled to a custody evaluation based on the best interests of the child. But when a parent asks the court to change an existing order he or she must demonstrate that there is “proper cause” or a significant change of circumstances to justify the change.
The Sims court emphasized that the Acknowledgment of Parentage establishes that a mother has initial custody “without prejudice to the determination of either parent’s custodial rights.” That means when a father asks the court to determine custody, the trial court has to start with the best interest factors, instead of making him demonstrate that anything had changed.
The Sims case demonstrated the difference between the two standards. No court had ever ruled on the minor child’s legal custody, so the Court of Appeals said he was entitled to an initial determination according to the best interest factors. But when it came to physical custody, Verbrugge was requesting a modification of the existing order entered in 2015. Because Sims hadn’t yet moved, “[t]his argument rests completely on contingent future events, not a change in circumstances that had already occurred.” While Verbrugge was entitled to a ruling on legal custody, the court said he had not met the burden to modify physical custody of his child.
Establishing the parental rights of unmarried fathers may be as easy as a stroke of a pen on an Acknowledgment of Parentage form, but establishing and modifying custody often takes a clear understanding of the different laws and standards that apply to child custody. Don’t try to navigate these waters alone. Hire an experienced family law attorney to help preserve your claim and establish your custodial rights.
Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents mothers and fathers in paternity and custody actions. If you need help establishing or modifying a custody arrangement for your child, contact Schmidt & Long today to schedule an initial consultation.