3.20Rebutting Presumption of Legitimacy

A putative father can only exist where a child has no legal father. In re KH, 469 Mich 621, 635-637 (2004). If a man is married to the child’s mother at any time between the child’s conception and the child’s birth, the child is presumed to be an issue of the marriage. See In re CAW, 469 Mich 192, 199 (2003); Serafin v Serafin, 401 Mich 629, 636 (1977).

“Only the mother and the presumed legal father may challenge the presumption of legitimacy. In order for a third party to have standing to rebut this presumption, there must first have been a ‘judicial determination arising from a proceeding between the husband and the wife that declares the child is not the product of the marriage.’ . . . Unless and until [the child’s mother] and her husband ask a court to declare that the child was born out of wedlock, [the putative father] lacks standing to claim paternity under the Paternity Act.” Sprenger v Bickle, 302 Mich App 400, 404 (2013), quoting Pecoraro v Rostagno-Wallat, 291 Mich App 303, 306, 313 (2011), (internal citations omitted). See also In re KH, 460 Mich at 635 (recognizing that only the child’s mother and legal father can rebut the presumption of legitimacy). “The presumption of legitimacy . . . can be overcome only by a showing of clear and convincing evidence.” Id. at 634.

Note: “[A] court determination under MCL 722.711(a) that a child is not ‘the issue of the marriage’ requires that there be an affirmative finding regarding the child’s paternity in a prior legal proceeding that settled the controversy between the mother and the legal father.” Barnes v Jeudevine, 475 Mich 696, 705-706 (2006) (holding that neither a default judgment of divorce indicating there were no children born or expected during the marriage, a birth certificate nor an affidavit of parentage are court determinations sufficient to establish that a child is not the issue of a marriage).

“When a minor child has a presumptive father [presumptive parent¹], the [Revocation of Parentage Act] allows an [alleged father] to come forward under certain circumstances and allege his paternity and legal fatherhood. See MCL 722.1441(3). A successful [alleged father] can obtain a judicial determination that a child was born out of wedlock,² a determination of his own biological paternity, and an appropriate order of filiation. MCL 722.1443(2)(d) and [MCL 722.1443(2)](e).” Graham v Foster (Graham II), 500 Mich 23, 26 (2017). For a detailed discussion on determining whether a child is born out of wedlock for the purpose of establishing paternity under the Revocation of Parentage Act, see Section 3.5.

“There has yet to be any determination in this state that a putative father of a child born in wedlock, without a court determination of paternity, has a protected liberty interest with respect to a child he claims as his own.” Aichele v Hodge, 259 Mich App 146, 168 (2003). See also Michael H v Gerald D, 491 US 110, 121, 124 (1989) (putative father did not have due process right to establish and maintain a relationship with a child born in wedlock).