How Does Michigan Establish Custody When Parents Are Unwed?

When married parents divorce, there is an obvious time (during the divorce process) for the law to establish which should have custody of the child, and which should have visitation — or, put another way, how much parenting time each one should have. But what happens when un­wed parents have a child? How and when does the court step in and establish rules over how the parents deal with the child?

Mothers Have Primary Custody
As with every State in the Union, Michigan has a fundamental law that states that primary custody of the child lies with the mother unless and until the father:

• Identifies himself and establishes paternity, and
• Files for a custody hearing.

It’s important to note that even if the parents both agree (by filing an Affidavit of Parentage) that the father is in fact the father, that agreement does nothing to give the father any rights over the child in terms of custody, visitation/parenting time, or the ability to legally participate in the decision-making process. A separate legal action must be initiated to establish all of those rights.

This is all based entirely on biology — mothers tend, because of a huge number of biological factors ranging from breastfeeding to oxytocin bonding, to be the parent that provides for the child’s most basic needs from the moment of conception onward. While extraordinary circumstances can change that fact, they are so vanishingly rare that the law largely assumes that they will be taken care of by individual judges’ discretion.

What If the Mother is Married, but Not to the Father?
A mother who is married and has a child by another man, that man has zero standing to file for custody or even visitation unless the court has made a decision prior to the birth of the child that the husband is not the child’s father. That’s a pretty unusual thing for the court to do, so most fathers that impregnate another man’s wife simply lose any rights to parent that child.

Exceptions
There are those children who are not born within ‘the system’ — as in, they’re born outside of a hospital, to parents that don’t go out of their way to alert the government that the child exists. Occasionally, parents in these kinds of situations will end up suddenly cropping up in court with problems that demand that the court make a decision about a child who has been parented for a number of years by two unmarried people. In these circumstances, the ‘mother gets primary custody’ rule falls by the wayside because current circumstances are far more important to the best interests of the child.

For example, if the child has an “established custodial environment” in which the father is the “primary caregiver” for the child and the mother is only tangentially involved, it’s quite likely that the courts will give the father custody and the mother visitation.

If you’re an unwed parent and you’re concerned about what will happen to your child because you’re starting to have troubles with the other parent, calling Gucciardo Family Law today — we’ll do everything we can to ensure that your child ends up in the best possible circumstances.