Nowadays there are many more children born outside of marriage than in the past. I receive many phone calls regarding paternity issues. Many of the calls center on the establishment of paternity and the rights of the parties after the child is born. There is nothing that can be done until after the child is born to establish rights for the father.
Quite frequently the father will be present when the child is born and in many instances the prospective father will sign an acknowledgement of paternity based on the mother’s representation that he is in fact the father. Quite frequently the mother has things right but the best advice is to refrain from signing the acknowledgement and waiting for a DNA test. Even if the father signs an acknowledgement he is consenting to the mother having custody until further order of a court. A huge factor in determining future custody lies with the living arrangements of the mother and father after the child leaves the hospital. If the child resides exclusively with the mother than it would be very hard for the father to get custody as under this arrangement the mother would have what is known as the “established custodial environment”. Under this scenario Dad cannot get custody unless Mom is derelict in her duties as a mother.
If on the other hand the parties live together than Dad can have a better shot at custody under the theory that the established custodial environment lies with both parties. Even under this scenario Dad is at a disadvantage in that quite frequently the courts favor the mother when the child is of tender age. On the other hand if the father can show that he is a better parent than the mother there is a chance that he will be awarded custody. Quite frequently when the parties are living together and there is a breakup Mom or Dad will leave and usually when the Mother leaves she leaves with the child. The father is almost always in a better position for custody or parenting time when he stays with the mother and files an action prior to leaving. Than he can get a court order for parenting time or custody and than leave. If a father does leave and is hoping to get custody or substantial parenting time than it is imperative that he files a paternity action forthwith so that you can still argue that the custodial environment lies with Mom and Dad. If you wait than Mom will argue that because of the delay and based on the fact that she has the child that the custodial environment lies with her.
The established custodial environment is important for one major reason. If you have the established custodial environment than the opposing party has to show by clear and convincing evidence that it is in the best interest of the child that custody be changed. If there is no established custodial environment than the standard is the preponderance of the evidence which is a lower standard. Under this standard you merely have to tip the scales in your favor.
If a dispute arises involving custody, parenting time, or support of a child born out of wedlock than one needs to file either a paternity action or a custody action. If the child was born to a married woman than the only way the father can establish paternity is if the woman is divorced and the divorce judgment indicates than a child born during the marriage was not a product of the marriage. I have handled cases where a man was told that he was the father and was allowed to start a relationship with a child on only to be told later that he could not see the child. If an acknowledgement of paternity has been signed than the mother or father would start a custody and/or support action. If there is no acknowledgement than Mom or Dad files a paternity action.
If the mother is on state assistance than the prosecutor in the county where the child resides will start an action on behalf of the mother or the mother can file the action herself if the state is moving slow or if there is no public assistance. Usually the prosecutor will only handle the support issues and if Dad files an answer making custody or parenting time an issue than the mother will be forced to hire her own attorney to handle these issues. Usually when the Father files the action he is looking to get custody or to establish meaningful parenting time. I have seen many occasions where the Mother withholds parenting time to a Father and forced him into filing an action to protect his rights.
If a custody action is filed then the court will determine custody, parenting time, and support. For a detailed analysis of custody and parenting time issues look at my blog post from February 21, 2012. Usually a father does not get as much initial parenting time on a custody action or a paternity action due to the young age of the child. Many judges will not grant overnights till the child reaches age one. Usually I try to negotiate a schedule with increased parenting time based on the age of the child so that the father does not have to keep going back to court to fight about this issue. Support is based primarily on the income of the parties and the number of overnights. Almost all the time support is based on the guidelines and has nothing to do with one parties expenses or the wealth of the parties or their parents. So if Dad is renting an apartment and has a lot of expenses and Mom is living with her parents the support will still be per the guidlines. The opposite is true if Dad lives with his parents and Mom is paying her rent and the court will still apply support per the guidlines. Support will also be paid retroactive to the date of the filing of the complaint. the court will also make an allowance for any medical insurance payments and make a determination of a pro-rata split of the uninsured medial expenses. Finally, the court will also make an award fro child care if the child needs daycare for work or education purposes.
In a paternity action the court will also apply the rules in the preceeding paragraph but will also include the costs of the hospital stay for the mother to give birth. This obligation is mandated by the paternity statute. One of the firsts steps in a paternity action is for the parties and/or the child to submit to a DNA test to determine paternity. Even in cases where the father thinks that he is the father it is always best to order the test. You would be surprised as to how often a mother is wrong as to who fathered the child. After paternity is established the parties need to work out support, parenting time, and custody. If the parties cannot settle than the court will hold a hearing on these issues. Quite freuquently the court will have the Friend of the Court make a recomenation as to these issues and quite frequently it is hard to do better than the recomendation. If it a hearing is held it is important to be well prepared for the hearing and it is best to be represented by an attorney.
If you are a parent with a question regarding issues on paternity and custody cases it is important that you contact an attorney to go over the best options for you to gain custody of the children. If you ever have any questions regarding grandparents and child custody issues call me at my office (248) 380-8787 or on my cell phone at (248) 672-6112. I have handled numerous custody and paternity cases for clients in Brighton,South Lyon, Howell, Novi, Northville, Milford, Commerce, Walled Lake, Highland and many other areas in Wayne County, Oakland County, and Livingston County.