Dad's Rights
In a divorce involving minor children, nothing is more important than custody of the children. There are two kinds of custody, legal custody and physical custody. Legal custody grants the power to make major decisions for the children regarding such issues as education, religion and health. Physical custody determines where the children live. In Michigan, the statute presumes that both parents will be awarded joint legal custody of the children. This means that both parents will work together to make joint decisions on major issues impacting the children. It does not mean that parents have to have the same household rules in their respective homes. Even if the parents cannot get along with each other, the Court will award them both joint legal custody if they can work together to agree upon major decisions for the children. If the parties absolutely cannot agree upon anything, including making decisions for their children, then the Court can award one party Sole Legal Custody. This will allow one parent to make all of the decisions about the children, with no input from the other parent.
Historically, physical custody was defined as sole physical custody or joint physical custody. Since there are so many variations of joint custody and since so many parents were wasting so much money for the label of sole custody rather than joint custody, or the other way around, many of the Courts have moved away from labeling custody as joint versus sole custody, and rather concentrate on fashioning a parenting time schedule which is in the best interests of the children. The child custody laws in Michigan are gender neutral; in theory neither parent has an automatic advantage based on gender. When determining a custodial arrangement or a parenting time schedule, the Court is required to consider what is in the best interests of the minor children when determining where the children should live, and how much parenting time each parent should have with the children. Because every family is different there is no set parenting time schedule.
Unless one parent is abusive or unfit, the Courts believe that it is in the children’s best interests for them to have a close and loving relationship with both parents, and will attempt to fashion a parenting schedule which facilitates that relationship. Since parents know their children better than anyone else does, it is ideally better for the parents to sit down with one another (and with each other’s child custody attorneys) and work out a parenting time schedule that is in their children’s best interests, and which takes into consideration the unique needs or schedules of their children. If the parents are having a difficult time working out a parenting time schedule between themselves, they can often benefit by meeting with a mental health expert who can work with the parties to fashion a parenting time schedule which meets the needs of the entire family. It is always better to work out a parenting time schedule with your spouse since both parties then can maintain control of their family and their children. Additionally, if an agreement is reached, it makes it much easier to continue to co-parent the children after the divorce is final. If the parties are unable to work out a parenting time schedule for the children, then the case will have to proceed to arbitration or trial, and your child custody lawyer will square off against theirs to prove who better represents the child’s best interests.
Before Birth
Before the baby is born, the essential assumption of Michigan law is that the health of the mother is the health of the baby, and the health of the mother is legally completely in the mother’s own hands. If she doesn’t want the father to be privy to test results, present for procedures and consultations, or to have any input into her health decisions, that’s her prerogative. The fact that she is carrying his child is nearly incidental to the fact that she is legally in complete control of her own medical interactions. (Yes, this includes the right to terminate the baby without any input from the father.)
Federal HIPPA laws ensure that the father will, by default, be excluded from all of those interactions due to privacy concerns unless the mother goes out of her way to provide consent for the father. This includes everything up to and including the father’s ability to be present in the delivery room when the baby is born. So until the child is legally a separate entity from the mother, a father’s rights amount to “Whatever the mother allows,” and that’s that.
At Birth
When the baby is born, Michigan law makes the rather odd assumption that whomever is married to the mother (or was married to her at the time of conception, either one works) is the father. That assumption is automatic, and it is recorded on the child’s birth certificate unless a court has previously issued an order that says otherwise. (The law has not been updated to address the Supreme Court’s homosexual-marriage decision, and case law has been quite unclear on the issue as well.)
If the mother is unmarried, one of three things happens:
- she and a male both agree to sign a Affidavit of Paternity, at which point the male becomes the legal father, or
- she does nothing, and the baby has no legal father, or
- she requests the court file an Order of Filiation, naming a specific man she believes to be the father of her baby.
(In that last case, Michigan father’s rights sinks to a whole new low insofar as failing to show up at the court case allows the court to file a default judgment of “You’re the father!” against you, putting you on the hook for the life of the child because you weren’t able to make it to the courtroom in time. If you do show up for court, you’ll get a DNA test and paternity will be established one way or the other.)
A genetic (but unmarried) father’s rights in this situation are markedly challenging to activate. The genetic father must first prove that the acknowledged father is not the real father, and that he is the real father, and must do this within 3 years of the child’s birth or 1 year of the acknowledgement of the current father (whichever is more generous to the genetic father.) Given the ease with which paternity — or even existence of a child! — can be hidden, this is a very slim time limit.
Even if DNA establishes your genetic link with the child, the court may still elect to leave legal paternity in another man’s hands if that man has established a paternal relationship with the child (by, for example, paying the mother’s medical bills and offering her other support and care). If the child has been born, putting in an honest effort to obtain (and properly spend) parenting time and establishing a support relationship (i.e. spending money on the child’s well-being) are crucial to establishing your seriousness as a father-to-be.
Single Father’s Rights
So you’re definitely the father of the baby, and the courts have acknowledged it — but the mother isn’t with you and doesn’t particularly like you. What rights to you have to your own child, and what duties do you have toward your own child?
- Both parents owe a duty of financial support to their child. The courts assume that whichever parent has custody of the child is inherently paying their part of that duty, thus, the non-custodial parent is ordered to pay child support.
- But, in a typical situation for single father’s rights, custody of a child is automatically given to the mother by default. An unmarried father’s visitation rights consist of nothing unless he files for them and pleads his case in front of a judge.
- Thus, as a single-never-married father, your rights to your child default to “you have the right to pay money and know that your child is out there,” and your option for fixing that is “find a Father’s Rights attorney and go to court to fight for your place in your child’s life.”
Divorced Father’s Rights
If your marriage to your child’s mother is ending, you are also going to end up in a position where you are fighting for a place in your child’s life — but in the case of a divorce, there are quite a few other circumstances that can complicate the situation. In short, while the courts in Michigan tend to favor mothers rather strongly, every divorce is wildly different, and no one statement about how things are likely to end up is applicable.
The only thing you can safely say about a father’s rights in divorce is this: unless they have a lawyer and they work hard to either reach an agreement with their ex or win over a judge, that father’s visitation rights are going to end up on the ‘less time than Mommy’ side, and the child support payments will reflect that.
Is this ‘right’ or ‘just’? That’s impossible to say — but the courts firmly believe it’s in the best interest of the child, which is why the laws are written the way they are. If you’re a dad in Michigan, get to know a solid Father’s Rights attorney like Renee Gucciardo, and get ready to fight.
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Family Guides
Below are some guides that can help with what can sometimes be challenging situations.Questions about the divorce laws in Michigan ?
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