There are several ways a Court Order may enter that would direct that a “father” pay child support for a child who is not his and whom he did not adopt.

The first way is if a man gets served a Summons and Complaint in a paternity action alleging him to be the father and after he fails to file an answer a Default Judgment enters. Some people wait too long to challenge a lawsuit, mistakenly believing that a good defense can be raised at anytime. Unfortunately, that sometimes leads to a breakdown in justice.

Another way a father can be ordered to pay child support for a child that his not his biological child, is if a Divorce Judgment lists him as being the biological father and he later determines that indeed he was not. The Court may find in particular circumstances that the Doctrine of equitable estoppel may be used to estop (prevent) the “father” who is not biologically related to the child from denying responsibilities associating with paternity. That usually applies when the father has stated that he will provide support for the child and the mother has relied upon that promise to her detriment. Perhaps, by the time a Court case has started the biological father can no longer be located or for other reasons the Courts enforces the promise and prevents the father from raising the defense that he is not biologically related to the child.

Equitable estoppel arises when one causes another, by acts, representations, or silence, intentionally or through culpable neglect, to believe in the existence of some material fact and to detrimentally rely on the existence of such fact. Nygard v Nygard, 156 Mich App 94; 401 NW2d 320 (1986). This theory may be applied to a divorce proceeding to prevent a father from alleging non-paternity. It also can be applied against a mother when she has always misled the husband into believing he was the father of the child.

Likewise, a biological father can not seek entry of a Court order directing a married woman to consent to a blood test of her child against her and her husbands wishes. The Court protects the sanctity of marriage to prevent a third party form challenging that marriage by requiring blood or paternity testing. In another case, plaintiff married defendant knowing that she was carrying a child for whom he was possibly the biological father. More importantly, plaintiff held himself out as the father and supporter of this child for more than nine years. Even if plaintiff were not the biological father of the child, by marrying defendant he forecloses any action by her to seek support from the child’s biological father. Actions under the Paternity Act are authorized only where the woman was unmarried from the conception to the date of birth of the child. MCL 722.711(a) and (b), 722.714(b); MSA 25.491(a) and (b), MSA 25.494(b). Johnson vs. Johnson, 93 Mich App 415 (1979)

The above is not intended to serve as legal advice. You should not rely on the above, but should consult an attorney.

Raymond J. Pater, Esq.
PATER LAW, PC

714 Michigan Ave, Ste B
Holland, Michigan 49423
(616) 396-8883

Copyright © 2012 by Pater Law, P.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

Raymond J. Pater, Ottawa County Michigan Family Law attorney serving Holland, Zeeland, Grand Haven, Jenison, and the Lakeshore community.

Where there is a battle between the parents and a third party, most think that the parents should win. The statute provides:

MCL 722.25 (1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.

It would seem that the parent wins in the absence of clear and convincing evidence to the contrary. But although there is a presumption in favor of a parent, there is also a presumption in favor of an established custodial environment.

“MCL 722.27 The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”

Previously, Courts ruled that the presumption in favor of the parents was overcome by the presumption in favor of the established custodial environment and that burden of persuasion was on the parent challenging the established custodial environment in the home of the third party.

But those series of cases were overruled by the holding that in a custody dispute between a parent and a third party with whom there is an established custodial environment, Michigan’s statutory parental presumption, MCL 722.25(1), must be given priority over the established custodial environment presumption, MCL 722.27(1)(c), and the third person must prove by clear and convincing evidence that all relevant factors, taken together, demonstrate that the child’s best interests require placement with the third person. That burden changes if the parent is not fit or has neglected or abandoned the child, when the the parental preference does not apply.

A party is best represented in a custody case by an attorney that knows the law and works to aggressively protect your legal interest.

If retained as your attorneys, feel free to call us with your questions. As your attorneys, we will try to keep you informed by providing you with copies of all correspondence and legal documents associated with your case whether they are received by this office or are produced by this office to be sent to the opposing party. We will try to assist you during what may be a difficult time.

The above is not intended to serve as legal advice. You should not rely on the above, but should consult an attorney.

Raymond J. Pater, Esq.
PATER LAW, PC

714 Michigan Ave, Ste B
Holland, Michigan 49423
(616) 396-8883

Copyright © 2012 by Pater Law, P.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

Raymond J. Pater, Ottawa County Michigan Family Law attorney serving Holland, Zeeland, Grand Haven, Jenison, and the Lakeshore community.