I Am a Legal Father, and I Need to Revoke Paternity of a Child Born During My Marriage

Michigan parentage/paternity law does not reflect the existence of LGBTQI parents in Michigan. We use gendered language in this article to match the current law. If you have questions about how the law in this area will apply to your family, use the Guide to Legal Help to find a lawyer or legal services in your area.

In Michigan, if you are married to a woman when her child is born or conceived, you are the legal father of that child. This is true even if you are not the child’s biological father. You have all the rights and responsibilities of a parent, while the biological father does not have any.

The only way to change your legal status as the child’s father is through a court process where the judge can determine you are not the father.

If you were never married to the child’s mother, this article is not for you. If your legal paternity was established in a different way—through an Affidavit of Parentage or a court order—you can still ask the court to revoke your paternity. However, the court process and the forms you need will be different. To ask to revoke paternity established by Affidavit of Parentage, you will need to file a Complaint/Motion and Affidavit to Revoke Acknowledgment of Parentage. To ask to revoke an order establishing paternity (called an order of filiation), file a Motion to Set Aside Order of Filiation.

Motion/Complaint to Determine Child Born Out of Wedlock

In order to have your legal status as the child’s father revoked (removed), a motion or complaint must be filed asking a judge to determine that you are not the child's father. Either you, the child’s mother, or an alleged father can file the motion or complaint. In some situations, the Michigan Department of Health and Human Services (MDHHS) can also file it. You can use our Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need. This tool will prepare a motion if you have an existing family court case or a complaint if you do not have an existing case.

Depending on who asks the court to revoke your paternity, there are different things that have to be proven in court. It is easiest for you, the legal father, to ask for your paternity to be revoked. It is the most difficult for the alleged father to ask for your paternity to be revoked.

Filing requirements

If you are the legal father and you want to ask the judge to determine that the child was born outside of marriage, you can file your motion before the child turns three years old in any of the following cases:

• A divorce or separate maintenance case between you and the child’s mother
• A child support case involving the child
• Any other case involving child support, parenting time, or custody of the child
• An ongoing abuse and neglect case involving the child

If none of these cases exist, you can file a complaint to start a paternity case. You can prepare either a motion or complaint using our Do-It-Yourself Revoke Paternity Established by Marriage tool.

If the child is older than three, you can file a motion in a divorce or separate maintenance case between you and the child’s mother.

Requesting a Time Extension

If the child is older than three and you want to file your papers without getting a divorce or separate maintenance (for example, by starting a paternity case), you can ask for a time extension. To do this, file a Motion and Affidavit for Extension of Time to File Action for Revocation of Paternity. The Do-It-Yourself Revoke Paternity Established by Marriage tool can help you prepare this Motion and Affidavit along with the other forms you need.

To qualify for a time extension, you have to show that you failed to file before the child turned three because of one of the following reasons:

• Mistake of fact

(Example: You thought you were the child’s father until after the child turned three years old.)

• Newly discovered evidence that by due diligence could not have been found earlier

(Example: After the child turned three years old, you found a letter addressed to your wife that says another man is the child’s biological father.)

• Fraud

(Example: Your wife falsely led you to believe you were the father until after the child was three years old. For fraud to occur, your wife must have known that you were not the father and intended for you to believe that you were.)

• Misrepresentation

(Example: Your wife falsely led you to believe you were the father until after the child was three years old. Unlike with fraud, misrepresentation can occur even if the mother believed you were the father and did not intend to deceive you.)

• Duress

(Example: Your wife threatened to physically harm you if you filed court papers to revoke your paternity.)

• Misconduct

(Someone’s misconduct – not covered by the other categories – prevented you from filing before the child turned three years old.)

If the judge grants you a time extension, you must later prove by clear and convincing evidence that revoking your paternity will not be against the best interests of the child. See the section “Best Interests of the Child” below.

Revoking Paternity

Genetic Testing

The judge may order you, the mother, and the alleged biological father to have genetic testing done to be sure who the child’s father is. Do what the judge’s written order says. The order will most likely include who must pay for the cost of genetic testing, when testing must be finished, and when the results must be filed with the court.

The judge may also include instructions about where to go for testing. If not, you can search online for genetic testing or DNA testing in Michigan. Search a company’s website (for example, on the “About” page) to make sure it is accredited by the American Association of Blood Banks (AABB).

The judge’s clerk or secretary or the Friend of the Court may also be able to tell you where you can go for genetic testing.

You do not have to know who the child’s biological father is for the judge to revoke your paternity. The judge may ask the child’s mother who the biological father is to determine if a new legal father can be named, but you are not required to know.

Best Interests of the Child

The judge may also consider the best interests of the child in deciding whether to revoke your paternity.

Even if you meet the filing requirements and genetic testing shows that you are not the child’s father, the judge can refuse to revoke your paternity if doing so would go against the best interests of the child. You must prove that it is in the best interests of the child for the judge to revoke your paternity. The judge may consider the following factors:

• Whether you should be allowed to deny parentage because of your conduct

(Example: If you delayed asking the court to revoke your paternity for a long time without a good reason, or filed before but asked for the case to be dismissed, revoking your paternity may be against the best interests of the child.)

• How long you have known you might not be the child’s father

(Example: If you filed to revoke your paternity immediately after finding out you may not be the child’s father, revoking your paternity may be in the best interests of the child.)

• The facts surrounding your discovery that you might not be the child’s father

(Example: If you moved out of the home you shared with your wife and the child after finding out you are not the child’s father, and you have not stayed in contact with the child, it may be in the child’s best interests to revoke your paternity.)

• What kind of relationship the child has with you

(Example: If you have a close relationship with the child, revoking your paternity may be against the best interests of the child.)

• What kind of relationship the child has with the biological father

(Example: If the child has a close relationship with the biological father, revoking your paternity may be in the best interests of the child.)

• The child’s age

(Example: Revoking paternity may be in the child’s best interests if the child is very young and not very attached to you.)

• Whether the child would be harmed if your paternity is revoked

(Example: If the child is strongly attached to you, it may be against the child’s best interests to revoke your paternity.)

• Anything else related to why your paternity should or should not be revoked

The Judge’s Decision and Child Support

If the judge grants your motion or complaint, the judge will sign an order revoking your paternity. You will no longer have any parental rights. Depending on whether an alleged biological father is also part of the case, the judge may also sign an order naming him as the new legal father.

The judge can set aside your child support obligation starting with the date you filed your Motion/Complaint to Determine Child Born out of Wedlock.

If you owe back child support (arrears) from before you filed your Motion/Complaint to Determine Child Born out of Wedlock, you will still owe this debt even if the judge revokes your paternity. The mother of the child may be able to waive (forgive) some or all of this debt, depending on whether you owe support to her or to the state. You can also file a motion asking the court for relief from the prior support order, but this website cannot help you prepare this motion. You may want to consider contacting a lawyer for help.

If the judge denies your Motion/Complaint to Determine Child Born out of Wedlock, you will continue to be the child’s legal father. You will continue to have all the rights of parenthood (custody and/or parenting time) and the obligations (child support).

Birth Certificate

Your name will not be removed automatically from the birth certificate if paternity is revoked. You must mail a completed Application to Correct or Change a Michigan Birth Record to Michigan Vital Records Changes. You will also need to include the court order revoking paternity and a check or money order. Read the application form for more information.

Finding a Lawyer

You might decide you want a lawyer to help you. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.