How to Establish Paternity and What it Means

Melissa Cox, Esq.

When a child is born and/or conceived during a marriage, the husband is presumed to be the father, and is automatically considered the legal father of the child pursuant to Michigan law. When a child is born out of wedlock, however, parents are required to take certain action in order to establish the paternity of the child. Even further steps are required by the acknowledged father to establish or determine custody of the child.  

The first and simplest mechanism for establishing the paternity of a child is though the execution of an Affidavit of Parentage. The mother and father publicly acknowledge that the child is the father’s by signing a notarized Affidavit and filing it with the Michigan Department of Community Health, Vital Records Division. There is a form for this available at most hospitals as well as the Probate Court and the County Clerk’s office.  If it is signed at the hospital when the child is born and the information is completed for the original birth certificate, the name of the father will be on the birth certificate.  If the Affidavit is filed after that time, the birth certificate will NOT be changed automatically to include the father and separate forms must be filed with the Department of Community Health.

It is crucial to understand that the execution and filing of the Affidavit of Parentage provides that the mother has sole legal and physical custody of the child unless and until a court order grants the father custody and/or parenting time. The Affidavit merely gives the father "standing" to file a case in court asking for a change of custody or to have rights to parenting time. 

A father who has not established paternity through Affidavit does not have rights to be enforced and must proceed through a lawsuit for paternity. Pursuant to MCL 722.714(1), the action must be initiated in the county where either the mother or child lives, unless they both live outside of Michigan, in which case the action may be initiated in the county where the father resides.  To initiate a paternity action, the moving party must file a Complaint with the Circuit. If any party to the action disputes the alleged paternity, the court will order blood or DNA testing in an attempt to establish the likelihood of paternity. MCL 722.716(5) states that if a DNA test results in a probability of paternity of 99% or greater, there is a presumption of paternity. Once the presumption is established through DNA testing, any party can petition the court for an Order of Filiation, which will legally declare the paternity of the child, and will also include a provision regarding the custody, parenting time, and support of the child.

Please contact attorney Melissa A. Cox at 248.380.0000 or mcox@fb-firm.com if you have any questions regarding paternity or child custody.

Paternity is Redefined in Michigan

Wendy Alton, Esq.

Paternity in Michigan has been completely redefined. The law in Michigan since 1956 has presumed that a child born in a marriage was the product of that marriage. This presumption existed even if the husband was not the biological father, and that fact could be proven.

As of June 12, 2012, pursuant to a new law signed in by the Governor of Michigan, paternity can now be established by the biological father even if the child was born in a marriage. This new law grants biological fathers rights over presumed fathers (men presumed to be the father because the child was born during the marriage.

However, very specific circumstances have to exist in order for paternity to be established, and there are extensive requirements in place with the new law. The primary circumstance that must exist is that paternity must be sought within 3 years of a child’s birth, or within 1 year of the entry of an Order of Filiation (paternity), whichever is later. This is merely one requirement, and the remaining requirements are too numerous to list here.

There is also a provision in the law allowing paternity actions under the new act even if the 3 year requirement isn’t met, provided they are filed within 1 year of enactment of the new law, again, under specific circumstances.

You can read the new law here:                                               http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2012-PA-0159.pdf

If you are interested in learning more about family law or divorce, or have a question about those issues, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Arnold Schwarzenegger’s Teenage “Love Child:” Why is Paternity Public Now?

by Wendy Alton

There is no question that the hottest news (gossip) topic in the last few days has been centered around the “love child” fathered by Arnold Schwarzenegger with his housekeeper, allegedly Mildred “Patty” Patricia Baena, while he was married to Maria Shriver. The news has been shocking, devastating, and sad, to say the least. Even more shocking that the child is now a teenager, and this entire relationship and child was hidden privately and publicly for over a decade.

Which raises an interesting question. Why has this become public now, since the child is assumed to be about 14 years old? Why not earlier? While I don’t presume to know the laws of paternity in California, a brief overview of paternity law in Michigan may provide some possible answers.

In Michigan, if a child is born while a woman is married, that child is legally presumed to be the biological child of the married parents. No one can challenge this paternity while the couple is married, even if a DNA test proves that the biological father is someone else.

If a woman becomes pregnant when she is unmarried, but then marries someone before the child is born, the child is presumed to be the father of the man she marries. This is true again even if DNA tests prove that the biological father is someone else.

In short, Michigan honors the sanctity of marriage for purposes of paternity. If a child is born during a marriage, the husband is presumed legally to be the father.

However, if the couple files for divorce, the mother or father can challenge the paternity of any of the children born during the marriage. If this happens, a DNA test is conducted, and if the test proves that the husband is not the father, the divorce judgment can include this information, and that child’s paternity remains an open question. If this happens, once the divorce becomes final, the mother or the assumed true biological father can the file a paternity action to establish paternity of that child.

Simply, if a man knows that he has fathered a child, even if a DNA test is done, he has no standing under Michigan law to establish his paternity if the mother is married to someone else. Additionally, if the mother does divorce, but the divorce judgment indicates that all the children born during the marriage are children of the husband and wife, the biological father still lacks standing. The husband is presumed to be the father (despite DNA), and this issue cannot be challenged once the divorce is finalized.

Turning back to the case of Arnold Schwartzenegger and his housekeeper, it was noted by the press that Patty Baena was married at the time she conceived this “love child.” If that is the case, then Patty Baena’s husband was legally presumed to be the father. However, the press has also stated that she is now divorced. Perhaps the divorce judgment indicates that this “love child” is not a child of that marriage, leaving paternity open. Perhaps Patty Baena is now going to file either a paternity or child support action, seeking financial support for her child. It’s just a guess, but if you analyze the law surrounding paternity issues, it makes sense.

Read the LA Times story that broke the news here: Maria Shriver on Schwarzenegger's paternity admission: 'Painful and heartbreaking.'

Read the Radar Online story that broke the news about the housekeeper’s identity: WORLD EXCLUSIVE: Mother Of Arnold Schwarzenegger's Love Child Revealed!