The Michigan Revocation of Paternity Act has been around for almost 5 years. Still, many people don’t know how it works. Here’s what parents need to know about the statute before they call a family lawyer.
What is the Revocation of Paternity Act?
The Michigan Revocation of Paternity Act, MCL 722.1431 et seq., creates a way for mothers, legal fathers, and biological fathers to sort out who has parental rights to the children born in less traditional relationships. It applies to cases where:
- A mother was married to one person but had a child with another (MCL 722.1441);
- The wrong person signed an Affidavit of Parentage or Acknowledgment of Paternity (MCL 722.1437);
- The court has entered an incorrect order regarding paternity based on incorrect DNA testing (MCL 722.1438); or
- without the father’s input (MCL 722.1439).
The law lays out the requirements for each party in each of the 4 cases and provides guidance to the courts in determining whether to grant a party’s request. The end result of a successful Revocation of Paternity lawsuit is that the parental rights of the legal father (the husband or person incorrectly identified as dad) are terminated and the biological father of the child is declared the new legal father, with all the rights and obligations that go along with that.
Deadlines: File Your Revocation of Paternity Action Early
The Revocation of Paternity Act contains strict “statute of limitations” provisions. If you don’t file your complaint in time, you likely won’t be allowed to pursue your case at all. In most cases, you must file your Complaint for Revocation of Paternity within 3 years of the child’s birth. However there are exceptions:
- A presumed father (the husband of the mother) can file a motion as part of a divorce even after the 3 year time limit.
- The mother or alleged father (the one claiming to be the biological father) can file beyond the 3 year limit if the legal father has failed to provide support for at least 2 years immediately before the complaint was filed.
- Any party can request the statute of limitations be extended for proper cause.
The extension of a statute of limitations is very difficult to accomplish. Judges tend not to grant them except in extreme circumstances, and often ask biological fathers why they didn’t act sooner – even before the child was born. Many attorneys will not even try to file if the 3 year window has passed. If you need to be the exception, be prepared to explain exactly why you didn’t act sooner.
Biological Fathers Face a Tough Case
The law allows for biological fathers to start a Revocation of Paternity Act on their own. But it doesn’t make it easy for them. For a biological father to assert his rights against a woman’s husband he has to demonstrate:
- That the mother wasn’t married when the child was conceived.
- That he didn’t know or have reason to know the mother was married when the child was conceived, and either that (a) he, she, and her husband have openly recognized his biological relationship to the child; or (b) the husband hasn’t provided support for the child for over 2 years.
Many biological fathers can’t meet those criteria. When that happens their cases can be dismissed regardless of DNA results.
DNA Isn’t Enough to Win the Case
Just because a man is biologically related to a child doesn’t mean he should be the father. This is why the Revocation of Paternity Act says a court may refuse to revoke paternity if it is not in the best interests of the child. In deciding this, the court will look at:
- Whether the presumed father (the mother’s husband) acted like a dad to the minor child.
- How long the legal father has known he might not be the child’s father.
- How the legal father found out that he might not be the child’s father.
- The child’s relationship with the legal father and the biological father.
- The age of the child.
- The harm that may result to the child.
- The disruption of the child’s understood family unit.
- Anything else that affects the child.
The older the child is before the case is filed, and therefore the more developed the child’s understanding of his or her family, the more likely the court will find that revocation will be harmful.
Find an Experienced Revocation of Paternity Attorney
It isn’t enough to file the right paperwork at the right time. You need a family law attorney who can help you assess your circumstances and make your case to the court. Five years later, there are still divorce lawyers that have never handled a revocation action, so you need to be specific when interviewing an attorney.
Family law attorney Lisa J. Schmidt has won Revocation of Paternity Actions across Metro Detroit. She has been handling these matters since the law first came into effect in 2012. She knows how to get a case dismissed, and how to win one. If you are facing a revocation of paternity action, contact Schmidt & Long, PLLC, in Ferndale, Michigan today for a free consultation.