The question has arisen whether law enforcement agencies can or should refuse to recover minor children of an unmarried mother from a person (for example, from the biological father) who has no court order for custody. The answer is "No!" Law enforcement agencies should assist the unmarried mother of children who are wrongfully taken from her and kept by another--even if that other person is the father of the child(ren).
Section 6 of the Acknowledgment of Parentage Act gives a biological mother initial custody of a child without prejudice to the father's right to seek a court order for custody or parenting time. See MCL 722.1006 here. However, it is common for law enforcement agencies to refuse to assist in cases where, for example, a father may take the child(ren) and run, or may keep them from or hide them from the mother. "It's a civil matter," they will usually say. "You have to go to court to get a court order." Parents and lawyers should persist. In Michigan, Attorney General Mike Cox was asked to give a written opinion of MCL 722.1006 and his opinion is that the police may rely upon an acknowledgment of parentage if there is no custody order.
Attorney General Mike Cox wrote (in part):
"You have asked if a properly executed affidavit of parentage legally gives the mother of a child born out of wedlock custody of the child named in the affidavit. You have also asked if there is any difference in the legal effect to be accorded a court's custody order and an affidavit of parentage for purposes of police agencies assisting custodial parents in returning children improperly withheld from them.
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"Section 6 of the Act, MCL 722.1006, establishes that the mother is presumed to have custody, unless otherwise determined by the court or otherwise agreed upon by the parties in writing:
"After the mother and father sign an acknowledgment of parentage, the mother is presumed to have custody of the minor child unless otherwise determined by the court or otherwise agreed upon by the parties in writing.
In the context of that statute, "presumed" means taken to be true without further proof, subject, of course, to a court order or written agreement of the parties providing otherwise."It is my opinion, therefore, that after a mother and father sign an acknowledgment of parentage concerning a child born out of wedlock, in accordance with the Acknowledgment of Parentage Act, MCL 722.1001 et seq, the mother has custody of that child unless otherwise determined by a court or otherwise agreed upon by the parties, in writing. A police agency may rely on a duly executed acknowledgment of parentage as establishing the mother's custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise." [Emphasis added]
Download AG Opinion Re Acknowledgment of Parentage Act [AG Opinion No. 7191 (Mike Cox), March 28, 2006] This should be shown to the prosecuting attorney / law enforcement, together with a request for enforcement (return of the child(ren) to the mother). If the mother does not have possession of the AOP, it is possible for law enforcement agencies to verify that, in fact, such a document has been executed and is on file with the State. Download the statute here: Section 6, Acknowledgment of Parentage Act.
VERIFICATION: Law enforcement agencies can verify whether there is an Acknowledgment of Parentage on file with the Department of Vital Records. See: REQUEST FOR VERIFICATION OF A MICHIGAN AFFIDAVIT OF PARENTAGE RECORD http://www.michigan.gov/documents/veriaop_70006_7.PDF
A parent or legal representative of a parent may also request a copy of the Acknowledgment of Parentage at the link above. However, turn-around times can be weeks long. A request by a police agency should be processed within hours (but not on holidays or weekends). A counter request will be processed in 1-2 hours.
If there is no Acknowledgment of Parentage and there is no court order, then the person taking or withholding the child(ren) is a legal stranger to the children and can be prosecuted for kidnapping. See the parental kidnapping statute here. MCL 750a If the taking person is not a natural parent, the wrongful taking or withholding of a child is felony kidnapping punishable by imprisonment for life or any term of years. MCL 750.350
