Paternity needs to be established when a child is born out of wedlock – born to a mother not married to the biological father. When paternity is established, the biological father also becomes the legal father. Paternity can be established through an Affidavit of Parentage or through an Order of Filiation.
Affidavit of Parentage
Under the Acknowledgement of Paternity Act, unmarried parents may voluntarily establish paternity by signing an Acknowledgement of Parentage (AOP). An AOP is a sworn statement intended for use by couples who are were not married when the child was conceived or born. Unmarried parents usually sign the AOP at the hospital; however, it can be done at any point in the child’s life. However, an AOP cannot be signed if the mother is married to someone other than the biological when the child was conceived or born.
An AOP is not a court order and although both parents voluntarily signed the affidavit, mother has initial custody of the child. This means that unless there is subsequent court intervention, the father does not have any rights to custody or parenting time. The AOP does, however, bestow legal standing for the father to move forward and file an action with the court – usually for custody and parenting time. Once an action is filed, child support will also be addressed.
Order of Filiation
If either parent refuses to sign the affidavit of parentage or if they do not agree on the paternity of the child, paternity may be established through a court order, known as an Order of Filiation. The party seeking a finding of paternity may file an action in the family division of the Circuit Court in the county where the mother and child reside, alleging in the complaint that the child was born out of wedlock. If the mother was married at any point from conception to birth, the mother’s husband is recognized as the legal father, even if he is not the biological father. Prior to June 2012, a biological father typically did not have standing to file an action when the mother was married to another man – the “legal” father. However, on June 12, 2012, the Revocation of Paternity Act (ROPA) was signed into law, enabling an alleged biological father to file an action in cases when there is a recognized legal father (i.e., the Mother’s husband). Under limited circumstances, ROPA also allows standing to set aside an AOP or Order of Filiation.
If the court determines paternity through an Order of Filiation, the order must include specific provisions for custody and parenting time – even if these issues are not in dispute. If there is a dispute over custody or parenting time after the action has been started, prior to the obtaining the Order of Filiation, the court must immediately enter a temporary order addressing custody and parenting time. The Order of Filiation must also address child support.
Contact me at (248) 647-7900 if you have questions regarding a paternity issue.