Dad, husband, non-biological mother? Who gets to be listed on a child’s birth certificate? Is it up to the mother, or the hospital? And what does being on the birth certificate actually mean, anyway?
This week I was approached by two different people asking, “Who get’s to decide who is listed as the father on a birth certificate?” As with most family law issues, the answer is “It depends.”
Married Moms and Presumed Parents
The most straightforward answer to the birth certificate question comes when the birth mother is married at the time the child is born. Michigan law says:
“The name of the husband at the time of conception or, if none, the husband at birth shall be registered as the father of the child. The surname of the child shall be registered as designated by the child’s parents.”
This is true even if the child is the result of artificial insemination (such as IVF) using a sperm donor. The Revocation of Paternity Act also presumes that the man married to a woman when the child was conceived or born is the legal father of that child.
Since Obergefell v. Hodges made same-sex marriage legal in 2015, these statutes have generally been read using gender-neutral language. When it comes to birth certificates, that means that the person (man or woman) married to the birth-mother of a child will be presumed to be the legal parent of the child, and registered as a parent on the child’s birth certificate. A same-sex spouse’s right to appear on a child’s birth certificate under a very similar state law was recently affirmed by the U.S. Supreme Court in Pavan v Smith.
Together, this means that for married moms, it is clear that their spouses should be listed on the birth certificate, even if someone else is the biological father of the child. Mothers may not choose to name a different father and spouses may not choose to be left off the birth certificate even if the child’s biological paternity is unclear. Those circumstances are what the Revocation of Paternity Act is designed for.
Unmarried Mothers and Acknowledgments of Paternity
If a woman is not married at the time of the child’s birth, the issue of paternity and birth certificates gets more complicated. That same statute quoted above goes on to say:
“If the child’s mother was not married at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and without the completion, and filing with the state registrar, of an acknowledgment of parentage by the mother and the individual to be named as the father. The acknowledgment of parentage shall be completed in the manner provided in the acknowledgment of parentage act. For a certificate of birth completed under this subsection and upon the written request of both parents, the surname of the child shall be designated by the child’s parents.”
That means unmarried fathers are not automatically added to a child’s birth certificate. Instead, both parents need to complete an Affidavit of Paternity and submit it to the State of Michigan. Because the Affidavit of Paternity requires both parents’ signatures, an unmarried mother can refuse to list an unmarried biological father on a child’s birth certificate, simply by refusing to sign the form.
This also creates a problem for unmarried same-sex couples intending to co-parent children. Remember that Obergefell was ultimately about marriage, not parenting. So if two people do not get married, it is biology that dictates parental rights. Even Michigan’s Equitable Parent Doctrine, which allows a person who has played the role of a parent to request custody or parenting time, only applies if that person is (or was) married to a legal parent of the child. The non-biological parent of a child conceived and born to that person’s same-sex partner is legally no different than a babysitter.
Not on the Birth Certificate, Now What?
The birth certificate itself has little legal weight. However, whether through a marriage presumption or an Affidavit of Paternity, a person doesn’t end up on a birth certificate without establishing some legal connection to the child. While parents may not remember signing the affidavit, or understand the law behind parental presumptions, most know that if they are not on the birth certificate, there is a problem.
The solution comes in the form of a Paternity action or a Revocation of Paternity action. If only the birth mother is listed as a parent on a child’s birth certificate, that probably means that the child was born out of wedlock, and that the child has no legal father. A lawsuit filed under the Paternity Act can fix that. By establishing a biological connection to the child through DNA genetic testing, a “putative” father can be converted into a legal father. He then will have the right to request custody of and parenting time with the minor child and the obligation to provide child support, which may be paid to the custodial parent (or guardian) or to the state.
If the wrong person is on the birth certificate, that may raise a Revocation of Paternity claim. These issues must be addressed quickly because, with few exceptions, lawsuits under this statute must be filed within 3 years of the child’s birth. The Revocation of Paternity Act is a complicated law with a variety of requirements depending on who starts the suit (“Alleged” father, legal father, or mother). However, if those requirements are met, the statute allows the legal father to be removed and the biological father to replace him in establishing parental rights to the child.
A Paternity action or a Revocation of Paternity lawsuit, if successful, gives the legal father the right to add his name to the child’s birth certificate. This is a step many legal fathers miss because it happens at the state level, rather than in court. By amending the child’s birth certificate after being declared the legal parent of your child, you can close the loop and commemorate the hard work it took to establish your rights.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents parents in Custody, Paternity, and Revocation of Paternity cases. If you think your name should be on a birth certificate, contact Schmidt & Long to schedule a consultation.