I Am a Mother, and I Need to Change Paternity of a Child Born During My Marriage

Michigan parentage/paternity law does not reflect the existence of LGBTQI parents in Michigan. We use gendered language in this article to match the current law. If you have questions about how the law in this area will apply to your family, use the Guide to Legal Help to find a lawyer or legal services in your area.

In Michigan, if you are married when your child is born or conceived, your husband is the legal father of your child. He is called the legal father or the presumed father under Michigan law. Your husband has all the rights and responsibilities of a parent. If another man is the biological father, he does not have any rights or responsibilities of a parent.

If you are in this situation, the only way to change paternity is through a court process where the judge can determine your husband (or ex-husband, if you are divorced) is not the child’s father, and that somebody else is.

If you were never married to the child’s legal father, this article is not for you. If the legal father of your child had his paternity established in a different way—through an Affidavit of Parentage or a court order—you can still ask the court to revoke his paternity. However, the court process and the forms you need will be different. To ask to revoke paternity established by Affidavit of Parentage, you will need to file a Complaint/Motion and Affidavit to Revoke Acknowledgment of Parentage. To ask to revoke an order establishing paternity (called an order of filiation), file a Motion to Set Aside Order of Filiation.

Motion/Complaint to Determine Child Born Out of Wedlock

The only way to revoke your husband's paternity is to file a motion if you have an existing family court case (such as a divorce), or a complaint if you do not have an existing case. Either you, your husband, or the man who believes he is the biological father (called an alleged father) can file the motion or complaint. In some situations, the Michigan Department of Health and Human Services (MDHHS) can also file this motion or complaint. You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need for the court process.

Depending on who asks the court to revoke the paternity of the legal father, there are different things that have to be proven in court. Michigan law makes it easiest for your husband to ask for his paternity to be revoked. It is the most difficult for the alleged father to ask for your husband’s paternity to be revoked.

Requirements

There are four different ways that you, as the mother, can ask the judge to determine that the child was born out of wedlock.

Option 1:

• You must name the biological father in the court papers you file;

• You must file the papers before the child turns three years old, unless the court gives you a time extension (see below); AND

• You must prove that you, your husband, and the child’s biological father at some time all openly acknowledged that the biological father (not your husband) is the child’s father.

Option 2:

• You must name the biological father in the court papers you file; AND

• You must prove that your husband failed, without good cause, to provide significant and regular support for the child for two years or more before you filed the papers, even though he was able to support or help support the child.

Option 3:

• You must name the biological father in the court papers you file; AND

• You must prove that, for two years or more before you filed the papers, your husband failed to significantly comply with the child support order requiring him to pay support for the child.

Option 4:

• You must name the biological father in the court papers you file;

• You must file the papers before the child turns three years old, unless the court gives you a time extension (see below); AND

• You must prove that your husband lives apart from the child.

If one or more of these options fits your situation, you can ask the court to revoke your husband’s paternity. You do this by filing a motion in one of the following cases:

• A divorce or separate maintenance case between you and your husband

• A child support case involving the child

• Any other case involving child support, parenting time, or custody of your child

• An ongoing abuse and neglect case involving your child

If none of these cases exist, you can file a complaint to start a paternity case. You can prepare either a motion or complaint using our Do-It-Yourself Revoke Paternity Established by Marriage tool.

Requesting a Time Extension

If you are relying on option 1 or 4 above, you are supposed to file your papers before your child turns three years old. In some situations, the judge may extend your time for filing. If your child is older than three and you want to ask for an extension to file your case, file a Motion and Affidavit for Extension of Time to File Action for Revocation of Paternity. The Do-It-Yourself Revoke Paternity Established by Marriage tool can help you prepare this Motion and Affidavit along with the other forms you need.

To qualify for a time extension, you have to show that you failed to file before the child turned three because of one of the following reasons:

• Mistake of fact

(Example: You thought your husband was your child’s father until your child turned three years old.)

• Newly discovered evidence that by due diligence could not have been found earlier

(Example: You thought your husband was your child’s father because your husband took a paternity test, and the results showed that he was the father. After your child turned three, you received a letter from the testing facility stating that the test results may have been inaccurate.)

• Fraud

(Example: You had sex with a man other than your husband around the time you conceived your child, and he told you that he was infertile, even though he knew this was not true. He intended for you to believe him. Relying on this lie, you believed that your husband was the child’s father because he was the only other man you had sex with around this time.)

• Misrepresentation

(Example: You had sex with a man other than your husband around the time you conceived your child, and he told you that he was infertile. He believed he was infertile, and he was not trying to deceive you. You relied on this information—which later turned out to be false—and believed that your husband was the only man who could be your child’s father.)

• Duress

(Example: Your husband threatened to physically harm you if you filed court papers to revoke his paternity.)

• Misconduct

(Misconduct could be any other wrongful conduct not covered by one of the other categories that prevented you from filing before your child turned three years old.)

If the judge grants you a time extension, you must later prove by clear and convincing evidence that revoking the legal father’s paternity and making the biological father the new legal father will not go against the best interests of the child. See the “Best Interests of the Child” below.

Revoking Paternity

Genetic Testing

The judge may order you, your husband, and the alleged biological father to complete DNA testing (also called genetic testing) to be sure who the child’s father is. Do what the judge’s written order says. The order will most likely include who must pay for the cost of genetic testing, when testing must be finished, and when the results must be filed with the court.

The judge may also include instructions about where to go for testing. If not, you can search online for genetic testing or DNA testing in Michigan. Search a company’s website (for example, on the “About” page) to make sure it is accredited by the American Association of Blood Banks (AABB).

The judge’s clerk or secretary or the Friend of the Court may also be able to tell you where you can go for genetic testing.

Best Interests of the Child

The judge may also consider the best interests of the child in deciding whether to revoke the legal father’s paternity.

Even if you meet one of the sets of requirements above and genetic testing shows that your husband is not the child’s father, the judge can refuse to revoke paternity if doing so would go against the best interests of the child. You must prove that it is in the best interests of your child for the judge to revoke your husband’s paternity. The judge may consider the following factors:

• Whether your husband should be allowed to deny parentage because of his conduct

• How long your husband has known he might not be your child’s father

(For example, if your husband has known for a couple years that he might not be your child’s father and has not filed an action to revoke paternity, revoking his paternity may be against the best interests of your child.)

• The facts surrounding your husband’s discovery that he might not be your child’s father

• What kind of relationship your child has with your husband

(For example, if your husband and child have a close relationship, revoking your husband’s paternity may be against your child’s best interests.)

• What kind of relationship your child has with the biological father

(For example, if the biological father has a close relationship with your child, revoking your husband’s paternity may be in your child’s best interests.)

• Your child’s age

(For example, revoking your husband’s paternity may be in your child’s best interests if your child is very young and not very attached to your husband.)

• Whether your child would be harmed if your husband’s paternity is revoked

• Anything else related to why your husband’s paternity should or should not be revoked

Results and Child Support

If the judge grants your motion or complaint, the judge will sign an order revoking your husband’s paternity. If the biological father is a party to the case, the judge may also sign an order naming the biological father as the new legal father. Otherwise, you and the biological father can later sign and file an Affidavit of Parentage to make him the legal father.

If your husband or ex-husband has a child support obligation, the judge can set it aside starting with the date you filed your Motion/Complaint to Determine Child Born out of Wedlock.

If your husband owes back child support (arrears) from the time before you filed your motion or complaint, he may still owe this debt even if the judge revokes his paternity. You may be able to waive (forgive) some or all of this debt, depending on whether your husband owes the support payments to you or the state. Your husband can also file a motion asking the judge for relief from the prior support order.

If the judge denies your motion or complaint, then your husband will continue to be the child’s legal father. He will continue to have all the rights of parenthood (custody and/or parenting time) and the obligations (child support).

Birth Certificate

Your husband’s name will not be removed automatically from the birth certificate if paternity is revoked. You must mail a completed Application to Correct or Change a Michigan Birth Record to Michigan Vital Records Changes. You will also need to include the court order revoking paternity and a check or money order. Read the application form for more information.

Finding a Lawyer

You might decide you want a lawyer to help you. If you have a 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.