3.19Determining the Putative Father
“If a child is claimed to be born out of wedlock and the mother executes or proposes to execute a release or consent relinquishing her rights to the child or joins in a petition for adoption filed by her spouse, and the release or consent of the natural father cannot be obtained, the judge shall hold a hearing as soon as practical to determine whether the child was born out of wedlock, to determine the identity of the father, and to determine or terminate the rights of the father as provided in [MCL 710.36, MCL 710.37, MCL 710.39].”1 MCL 710.36(1).
A child born out of wedlock may not be placed for adoption until the consent or release of the child’s biological father is obtained or the court terminates the father’s parental rights.2 See MCL 710.31(1).
For checklists on terminating a putative father’s parental rights, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Terminating Father’s Parental Rights.
“Notice of the hearing[3] shall be served upon the following:
(a) A putative father who has timely filed a notice of intent to claim paternity as provided in [MCL 710.33] or [MCL 710.34].[4]
(b) A putative father who was not served a notice of intent to release or consent at least 30 days before the expected date of confinement specified in the notice of intent to release or consent.
(c) Any other male who was not served according to [MCL 710.34(1)] with a notice of intent to release or consent and who the court has reason to believe may be the child’s father.” MCL 710.36(3).
“Proof of service of a notice of intent to release or consent or the putative father’s verified acknowledgment of notice of intent to release or consent shall be filed with the court, if the notice was given to the putative father. The court shall request the vital records division of the department to send to the court a copy of any notice of intent to claim paternity of the particular child that the division has received.” MCL 710.36(2).
“Notice of a petition to identify a putative father and to determine or terminate his rights . . . must be served on the individual or the individual’s attorney in the manner provided in: (a) MCR 2.107(C)(1) or [MCR 2.107(C)](2),[5] or (b) MCR 2.105(A)(2), but service is not made for purpose of this subrule until the individual or the individual’s attorney receives the notice or petition.”6 MCR 3.802(A)(2). “If service cannot be made under [MCR 3.802(A)(2)] because the identity of the father of a child born out of wedlock or the whereabouts of the identified father has not been ascertained after diligent inquiry, the petitioner must file proof of the efforts made to identify or locate the father in a statement verified under MCR 1.109(D)(3).[7] No further service is necessary before the hearing to identify the father and to determine or terminate his rights.” MCR 3.802(B)(1).
“The notice of hearing shall inform the putative father that his failure to appear at the hearing constitutes a denial of his interest in custody of the child, which denial shall result in the court’s termination of his rights to the child.” MCL 710.36(4).
“Proof of service of the notice of hearing required by [MCL 710.36(3)] shall be filed with the court. A verified acknowledgment of service by the party to be served is proof of personal service. Notice of the hearing shall not be required if the putative father is present at the hearing. A waiver of notice of hearing by a person entitled to receive it is sufficient.” MCL 710.36(5).
“The court shall receive evidence as to the identity of the father of the child. In lieu of the mother’s live testimony, the court shall receive an affidavit or a verified written declaration from the mother as evidence of the identity and whereabouts of the child’s father. If the court determines that the affidavit or verified written declaration is insufficient, the court shall allow amendment of the affidavit or verified written declaration. If the court determines that the amendment of the affidavit or verified written declaration is insufficient, the court may receive live testimony from the mother. Based upon the evidence received, the court shall enter a finding identifying the father or declaring that the identity of the father cannot be determined.” MCL 710.36(6).
If the identity or whereabouts of the father is unascertainable, the court must “take evidence concerning the attempt to identify or locate the father. If the court finds that a reasonable attempt was made, the court shall proceed under MCL 710.37(2).[8] If the court finds that a reasonable attempt was not made, the court shall adjourn the hearing under MCL 710.36(7) and shall
(a) order a further attempt to identify or locate the father so that service can be made under [MCR 3.802(A)(2)(a)], or
(b) direct any manner of substituted service of the notice of hearing except service by publication.” MCR 3.802(B)(2).
“If the court finds that the child’s father is a person who did not receive either a timely notice of intent to release or consent according to [MCL 710.34(1)] or a notice required under [MCL 710.36(3)], and who has neither waived his right to notice of hearing nor is present at the hearing, the court shall adjourn further proceedings until that person is served with a notice of hearing.” MCL 710.36(7).
1 For additional information on a release of parental rights, see Sections 2.2-2.4, a consent to adoption, see Sections 2.6-2.9, and a stepparent adoption, see Section 8.3.
2 A putative father has a due process right to notice and a hearing before his parental rights are terminated. In re Kozak, 92 Mich App 579, 581-584 (1979).
3 See the SCAO Form PCA 311, Notice of Hearing to Identify Father and Determine or Terminate His Rights.
4 MCL 710.33 permits a putative father to file a notice of intent to claim paternity of an expected child. MCL 710.34 permits “a woman pregnant out of wedlock [to] file with the court an ex parte petition which evidences her intent to release her expected child for adoption or to consent to the child’s adoption,” and requires notice of her intent to be provided to the putative father that informs him of his right to file a notice of intent to claim paternity under MCL 710.33. For a discussion on filing a notice of intent to claim paternity under MCL 710.33, see Section 3.18, notice of an expected mother’s intent to release her expected child, see Section 2.4, and notice of an expected mother’s intent to consent to her expected child’s adoption, see Section 2.9.
5 “Notwithstanding any other provision of [MCR 2.107], until further order of the Court, all service of process except for case initiation must be performed using electronic means (e-Filing where available, email, or fax, where available) to the greatest extent possible. Email transmission does not require agreement by the other party(s) but should otherwise comply as much as possible with the provisions of [MCR 2.107(C)(4)].” MCR 2.107(G).
6 If the putative father is incarcerated, see Section 2.12 for the notice requirements for incarcerated parties.
7 The affidavit or declaration may be verified by: “(a) oath or affirmation of the party or of someone having knowledge of the facts stated; or (b) except as to an affidavit, including the following signed and dated declaration: ‘I declare under the penalties of perjury that this __________ has been examined by me and that its contents are true to the best of my information, knowledge, and belief.’ . . . .” MCR 1.109(D)(3). See the SCAO Form PCA 315, Declaration of Inability to Identify/Locate Father.
8 MCL 710.37(2) permits the court to terminate the putative father’s parental rights under certain circumstances. For additional information on terminating a putative father’s parental rights under MCL 710.37, see Section 2.10(A).