Written by attorney Scott G. Millard

Legal Standing for Custody: the Legal father vs. the Biological father

When a child is born to a woman that is legally married, that child's legal father is presumed to be the husband. This seems fairly logical, however this has led to several legal issues that may concern a biological father's right to the custody and care of their natural child. Moreover, this issue may result in a husband that has been without contact with his wife for an extended period of time, to suddenly become financially responsible for children fathered by another man because these individuals have not taken action to legally dissolve the marriage.

In Snay v Vest, ___ Mich App ___ (Unpub, #293618, 11/18/2010), the Michigan Court of Appeals requested that the Michigan Supreme Court readdress the issue of standing of a biological father, when the mother is still legally married to another man at the time of the child's birth. The Court of Appeals noted that a biological father does not have standing to seek custody of his child because he is not the legal father. Until a court has issued an order declaring that the child is not the product of the marriage, the biological father cannot seek custody of his child.

This seems absurd in modern times, as the advent of DNA testing and the destigmatization of a child being born out of wedlock, makes this old rule seemingly obsolete. However, the higher courts have refused to change the presumption that a child born during marriage is the child of the husband. This is largely in the finding of a constitutional liberty interest that a child born to an intact marriage possesses so as to be deemed legitimate; rather than allowing for that child to be attached with the stigma of being deemed a "bastard." Whether today there is any real consideration of whether a person is legitimate at birth, or whether anyone in modern times really cares one way or another remains up for debate.

The fact of the matter is that if two married individuals are no longer going to be together, or if the fertile female is going to choose to engage in a subsequent relationship(s) or seek the carnal comforts of other fertile men, for the husband it is economically wise to pay the money and take the time to properly dissolve the marriage by utilizing a divorce proceeding. This ensures that you will be able to avoid the legal issues that may surprise you down the road, if for some reason your yet undivorced spouse engages in an act of reproduction where that relationship also proves to not be everlasting in duration.

For the man that wishes to take up a relationship with a married woman that, for all intensive purposes, is no longer acting as though she is married, even though in reality she remains very musch legally married. That individual is well advised to encourage her to seek a divorce before fathering a child with her. This will ensure that there are not substantially difficult and expensive hoops to jump through before he is able to seek or ensure that his parenting time is protected by the force of a legal order.

It is well advised that if you find yourself in any of the above listed scenarios, that you employ an knowledgable attorney to help to aid you in navigating the system, taking appropriate action, or in achieving the desired result. If you are seperated from your wife or if you are in a relationship with a woman that is still legally married consulting with an attorney about your legal rights is very important. At Miel & Carr, PLC we are both able and willing to provide that help to you. Call to set up an appointment and find out how to protect your rights.

Scott G. Millard

Miel & Carr, PLC

(989) 831-5208

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