Non-Marital Children Born or Conceived During a Marriage

This article applies to parentage of non-marital children born during a marriage between opposite-sex spouses. 

A non-marital child is a child whose biological parents weren’t married to each other when that child was born or conceived. This includes a child born to a woman who is married but whose husband is not the biological father. This article talks about what to do if you are getting a divorce, and a non-marital child was born during your marriage.

Paternity of Children Born During a Marriage

Sometimes a married woman gives birth to a child whose biological father is not her husband. Although the husband is not the child’s biological parent, he is the child’s legal parent under Michigan law. The husband is the legal parent of every child born or conceived during the marriage.

The reverse is not true. If a man fathers another woman’s child while he is married, his wife is not the legal mother of that child.

As the legal father of the children born during his marriage, a husband may have custody and parenting time. He may also be responsible for providing child support and health insurance.

The biological father of such a child has no parental rights or responsibilities for the child.

Revoking the Husband’s Paternity in a Divorce

If you have a non-marital child who was born or conceived during your marriage, you and your spouse may agree that the husband will continue to be the legal parent of the child after the divorce. Or, you may want to undo the husband’s status as the child’s legal father.

If you are the husband or the wife, you can ask the judge to revoke (undo) the husband’s paternity of a non-marital child. Either you or your spouse must file a Motion to Determine Child Born Out of Wedlock to ask the judge to revoke paternity. You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you will need. If you do not file a Motion to Determine Child Born Out of Wedlock, the husband will continue to be the child’s legal father.

You can file a Motion to Determine Child Born Out of Wedlock as part of your pending divorce case, or you can wait until the divorce is final. However, the judge may be less likely to revoke paternity the longer you wait to file. To learn more about how the judge makes a decision in this type of case and about the court process, go the I Need to Revoke Paternity Established by Marriage: Tools for the Legal/Presumed Father toolkit or the I Need to Revoke Paternity Established by Marriage: Tools for the Mother toolkit.

Finding a Lawyer

You might decide you want a lawyer to help you with a paternity issue. If you have low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.