By WILLIAM L. LABRE, J.D.

 

“I want to see my son, Mr. LaBre. My son’s mother and I signed an Affidavit of Paternity when he was born. I changed his diapers as a baby. I played with him as a growing infant. I helped him with his homework when he started school. I went to all of the parent-teacher conferences. Now that my girlfriend and I have split up, she won’t let me see him. She even told the school that I couldn’t go to his activities.”

“Were you and the mother ever married?” I asked.

“No, we just lived together after she left her husband.”

“Why did she leave her husband?”

“She said that she didn’t love him and that he was a creep.”

“How long were the both of you together?”

“Ten years.”

“Why did she leave you?”

“She said that she didn’t love me anymore and that I was a creep.”

“When was the baby born?”

“We started living together when she broke up with her husband. The baby was born 10 months later.”

“Was she still married when the baby was born?”

“Yes, she didn’t file for divorce until the baby was two years old.”

“When she got divorced, was there ever a court order, which determined that her husband was not the father of the boy?”

“No. She and her husband didn’t use a lawyer. She said it was too expensive.

But I do know that her Judgment of Divorce doesn’t mention any children. Isn’t that enough?”

“No,” I said. “That’s not enough. In Michigan, a child born during marriage is presumed to be the child of that marriage. The only way that this can change is through an order by the divorce court specifically finding that the husband is not the child’s father. Being silent about a child is not enough.”

“But can’t I bring an action to show that I am the father? DNA testing would prove that I am!”

“No, not in Michigan,” I said. “You don’t have what lawyers call ‘standing’ to even bring the action under the Paternity Act. The only way that a child born during a valid marriage can be declared not a child of the marriage is during the divorce action between the husband and wife.”

“Do you mean to tell me that I can’t even go to Court to continue seeing my own son?”

“No, you can’t. Under Michigan Law, he’s not your son. He’s the legal son of your girlfriend’s ex-husband.”

“Does that mean that she could go after her ex-husband for child support?

“Yes, she could do that. He’s the legal father, and legal fathers have a legal duty to support their children.”

“What about the Affidavit of Paternity which we both signed. Doesn’t that give me rights?”

“Normally, yes. But because your girlfriend was married when the child was born, the Affidavit of Paternity is simply invalid.”

“Isn’t there anything I can do?”

“Where do you, the mother and the child live?”

“I live in Michigan; mother and child live in Indiana.”

“How long have they lived in Indiana?”

“Six months.”

“Well, Indiana law is the exact opposite of Michigan. In Indiana you could file for paternity, even though the child was born during a valid marriage. Since the child has lived in Indiana for six months, you could file a paternity action there.”

“Now you’re talking!”