There are a number of questions that I frequently receive from potential clients. These are inquiries I have heard many times over the years and which are often based on assumptions that are usually invalid. The following are the top five questions, and the answers that often surprise the potential clients.
Question No. 1 – We were never married, but we have lived together for two years. We have a year old baby. She took the baby and moved out a month ago. She promised me I could see our baby, but she won’t let me take the baby and only lets me see him when she feels like it. Does she have the right to do this? Don’t I have any rights?
Answer – No! You have no rights to your child whatsoever. In Michigan, an unmarried mother is presumed to have full physical and legal custodial rights. The only way to establish parental rights as an unmarried biological father is to file a lawsuit in the family court where the child resides to establish paternity (which may be acknowledged), along with legal custody, physical custody, parenting time and child support. Until and unless there is a court order granting the unmarried father these rights, he has none. This can be particularly alarming if the mother decides to pick up roots and leave the state, or even make a long-distance move in-state. Therefore, because of this as well as other reasons, file your case as soon as possible!
Question No. 2 – I have sole legal and physical custody of my child. I want to move from Michigan to another state. I don’t have to get permission to move from the court because I have sole custody, right?
Answer – Wrong! The judgment or order issued by the Michigan Family Court requires that you petition the court for permission to change a child’s domicile to a new state, even where you have sole physical and sole legal custody. The good news is that you can expect the family court to “rubber stamp” your request because you have sole custody.
Question No. 3 – My judgment of divorce says we cannot leave the state without court permission. He is threatening to take the kids to Disney World without a court order. What should I do?
Answer – In most cases, the provision in your judgment prohibiting removal from the state refers to changing a child’s domicile (as discussed in Question No. 2, above) on a permanent basis. While there may be some judgments that, due to specific facts in the case, prohibit one or both parents from taking the children out-of-state for vacations, that is not normative. Usually, a parent may take the children out of Michigan for a vacation without needing to request permission from the court first. Of course, it is appropriate (and indeed, many judgments expressly require) that the parent provides a travel itinerary to the other parent and ensure that there is a means of contacting the children while they are away.
Question No. 4 – My son and his wife will not let us see our grandchildren. I’ve heard that Michigan has grandparent rights. Is that true? I want to file a motion asking the court to let us see the children.
Answer – It is true that there is a statute governing grandparent visitation in Michigan. However, it may only be invoked in cases where there is a family court case pending concerning the children. If the parents are married, living together with the children and no case is pending in family court concerning the custody of the children, the grandparents do not have standing to bring a lawsuit to obtain grandparenting time. Whether you agree with the legislature or not, the reality is that, where no court case is pending, you do not have any legally recognizable right to demand time with the grandchildren.
Question No. 5 – My ex wants me to agree to terminate my parental rights. She wants her new husband to adopt our son, whom I have not seen in five years. I’m willing to do so, but only if she agrees to cancel my $75,000 child support arrearage. If I terminate my rights, I won’t have to pay that money, right?
Answer – Wishful thinking, especially if some of that money is owed to the State of Michigan based on the child’s receipt of public assistance at any during his life. Once your parental rights are terminated, you will no longer have a child support obligation going forward, but there is no guarantee that your arrearage will be cancelled. If the money is only owed to the mother (and the State of Michigan is not seeking reimbursement for public assistance paid on behalf of your son), the Friend of the Court is often willing to waive the arrearage and permit the step-parent adoption to go forward, so long as the payee (in this case, your ex-wife) is agreeable. However, the State will not be so forgiving. Again, however, the benefit is that you will at least have no support obligation going forward.