Ask a Family Lawyer. Did you know that you might not even have legal custody of your child?

It is not uncommon for a couple to give birth to a child outside of marriage.  When this happens, the hospital where the child was born often has the parents fill out and sign an acknowledgment of paternity form.  Eventually the mother and father’s names will both appear on the birth certificate.  But does that mean that they both have custody?

No it does not!  A careful reading of MCL 722.1006 tells you that it is only the mother who has custody in the above fact pattern.  MCL 722.1006 states the following:

After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.

The effect of MCL 722.1006 is that, until the father in the above fact pattern obtains an order for custody, he has no custody rights of his own child (relative to the mother). 

What does this entail?  Well, suppose that Stacy and Steve give birth to a child outside of marriage. At the hospital, Stacy and Steve sign an affidavit of parentage and both appear on the child’s birth certificate.  Stacy and Steve live together with the child for two years as a happy non-married couple.  They are both great parents to the child. 

Unfortunately, Stacy and Steve begin to have relationship problems, but they continue living together.  One day, Stacy tells Steve that she is bringing the child out of state for a week to visit her parents.  However, Stacy does not return with the child and refuses to answer Steve’s phone calls.  Stacy has decided that she will keep the couples’ child out of state with her and her parents.

What can Steve do?  Because he never obtained a custody order he cannot seek relief from parental kidnapping laws because he does not have custody.  E.g., see MCL 750.350a.  He cannot yet seek relief from a Family Court judge under the 100 mile rule because he does not have custody.  See MCL 722.31. 

Before Steve can have any tangible decision-making rights over his child (relative to Stacy’s rights), he must file a complaint for custody in Family Court.  Steve might not have difficulty actually obtaining a custody order.  However, depending on when he files and how long it takes him to obtain the order, the effect of his initial lack of custodial rights could ultimately place Steve at a disadvantage when it comes to a custody characterization, parenting time, residency of the child, and child support.

Please note that the above blog article shall not constitute legal advice.  Accurate legal advice should be given on a case-by-case basis as its accuracy is relative to the particular facts of the given matter.

Founder of Guardian Law, Anthony A. DeMatteis, is an attorney who concentrates in the area of Family Law.  Mr. DeMatteis promotes peaceful, constructive resolutions in domestic matters.  He practices in Macomb, Oakland, Wayne, and Livingston Counties.  His office and contact information is as follows:

Guardian Law
Law Office of Anthony A. DeMatteis, Esq.
14630 East Nine Mile Rd.
Eastpointe, MI 48021

(586) 662-1207; or
(586) 354-8616
anthonydematteis@gmail.com
guardianlaw24@gmail.com