Friday, January 28, 2011

Can My Ex-Wife’s Boyfriend Take Away My Kid?

A recently published case from the Michigan Court of Appeals, Pecoraro v. Rostagno-Wallat, has supported previous court rulings that a “putative” or suspected biological father generally cannot bring a suit to establish paternity or custody over a child that was conceived and born while the mother was married to another man.

In the case, the mother and her boyfriend had an intimate relationship while they were both attending law school, and while the mother was married to her husband.  After the boyfriend finished school he moved to New York.  The mother visited the boyfriend in New York, and shortly thereafter was found to be pregnant.  DNA tests on the child confirmed that the boyfriend was the father.  However, the mother and the husband never got divorced, and more importantly, never asked the court to determine that the child was not the husband’s.  The boyfriend got a court in New York to issue an “Order of Filiation” stating that he was the father, but the court had no jurisdiction (that is no authority or power) over the husband.  The boyfriend then tried to enforce that Order of Filiation in Michigan.

The Michigan Court of Appeals said this just simply would not work.  In Michigan, if a child is conceived and born while the mother is married, the courts are required to assume that the husband is the father.  The mother or the husband may request that the court make a finding to the contrary based on, among other things, DNA evidence, or lack of access at the time the mother became pregnant.  A third party (particularly the boyfriend) cannot ask the court to ignore the assumption that the husband is the father and award him paternity or custody rights over the child unless some court has already made a judicial finding at the request of the mother or the husband.

All of this may seem a little complicated, but the court’s ruling boils down to this: a child cannot have two legal fathers.  Because the mother and the husband had not asked the court to decide that the husband is not the father, the boyfriend could not bring a suit to have a court determine he was the father.

But what about that ruling by the New York court?  Ordinarily, a court in Michigan must enforce valid rulings made by other courts in other states.  In this case, though, because the New York court admitted that the husband was considered the legal father under Michigan law, and because the New York court did not have jurisdiction (that is authority or power) over the husband, the New York court’s ruling was not valid and the Michigan court did not have to enforce it.

To make a long story short, the boyfriend was not allowed to take the child away from the husband, who was assumed to be the legal father under Michigan law.

Read the original court opinion on the State of Michigan website.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a divorce.