A lawyer on the Family Law Listserv asked today about whether a putative father can protect his parental rights by filing a “notice of intent to claim paternity.” In responding to this question, I note the major pitfalls a putative father may have in protecting his parental rights.
Section 33 of the Michigan Adoption Code [MCL 710.33] provides for the filing of a Notice of intent to claim paternity and operates somewhat like a central registry. In pertinent part:
(1) . . . The form of the notice shall be prescribed by the director of the department of public health and provided to the court. The notice shall include the claimant's address. On the next business day after receipt of the notice the court shall transmit the notice to the vital records division of the department of public health. If the mother's address is stated on the notice, the vital records division shall send a copy of the notice by first-class mail to the mother of the child at the stated address.
(2) A person filing a notice of intent to claim paternity shall be presumed to be the father of the child for purposes of this chapter unless the mother denies that the claimant is the father.
[The notice is admissible in a paternity action, and creates a rebuttable presumption of parentage.]
(3) A person who timely files a notice of intent to claim paternity shall be entitled to notice of any hearing involving that child to determine the identity of the father of the child and any hearing to determine or terminate his paternal rights to the child.
Does this registry fully protect a putative father? The answer is clearly "no." The reasons why are many:
1) The mother might travel outside the State of Michigan and surrender the child for adoption in another state. All state registries are state-specific. Moreover, only about half of the states even have a registry. This is why a national registry would work better. The father may not be able to discover the whereabouts of the child until it is too late to file with the registry in the state where the child was born.
In some states, that would be 5 days after the child's birth. If the mother then gives the child up for adoption, the laws of the state in which the child is born would operate to permit termination of the father's parental rights if -- say -- Mom gives birth in Arizona, releases the child for adoption, and Dad doesn't file in Arizona's putative father registry within 5 days of the child's birth. In this scenario, Dad 's rights are terminated.
2) The mother might move prior to the child's birth, from (for example) Detroit to Copper Harbor prior to the birth of the child, thus putting 600 miles between herself, the child after its birth, and the father -- frustrating his opportunity for a real father-child relationship. For this reason, filing a paternity action would bring the 100-mile rule into play (or would it?) There's a good question. Does Mom's "move" of a child in utero allow her to circumvent the constraints of the 100-mile rule?
3) The mother might marry another man prior to the birth of the child -- perhaps even a friend who is just a convenient way of frustrating the biological father's rights, as may have occurred in Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005. It's not really clear from the Numerick case whether Mom quickly fell out of love with Numerick when 6 or 7 months pregnant and quickly in love with another man. Whatever the background facts really are in that case, the result was that a man lacks standing to sue for parentage under Michigan law if a child is born or conceived during a marriage. [Clearly, in this scenario, filing a paternity action prior to the birth or filing a notice of intent to claim parentage would not help the father if the mother is hell bent on defeating his standing.]
4) Even if a father files a notice of intent to claim parentage, that doesn't save his bacon if he fails to provide support for the mother during the pregnancy or form a support and care relationship with the child in he 90 days preceding the filing of a petition for adoption. See Section 37 of the Adoption Code. Thus complete advice to a putative father would include making sure that he understands the importance of providing support and of setting up a bank account in the event that the mother refuses support.
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