Legal Aspects of Determining what Makes a Father

Imagine this, an unsuspecting husband (or boyfriend) and his wife have a child. They raise it together for years and all the while he believes it is his. Then there is a divorce or breakup and all of a sudden, he finds out that the child he has raised and loved as his own belongs, at least biologically, to another man. With the rate of illegitimate births on the rise, the number of paternity actions is also skyrocketing. Unfortunately, for some, the number of paternity tests that are coming back with bad news are also increasing.

In a recent Pennsylvania case (LYT v. JLG, No. 920187, County Court of Common Pleas, Pennsylvania, 11/18/95) A man discovered that the child that he and his long-term girlfriend had loved and supported as their daughter for six years had, in fact, been fathered by another man. Unfortunately, cases like these have become all too common. He claims that he assumed paternity because he had been the only man that his girlfriend had been dating when she became pregnant. She, however, contends that she told him she had been dating another man at the time. There are many serious questions that arise out of these cases, some of them ethical and some of them legal.


1. Should the non-biological “father” be allowed to wash his hands of the child
once he discovers the truth of his/her parentage?

“It is against the public policy of Michigan for a parent, whether they
be natural or equitable, to suddenly disclaim parenthood during a
custody battle. Where…a father rears a child as his own, he is
estopped to deny the child as his.” (Johns v. Johns, 178 Mich App 71,
This statement by the appeals court of Michigan makes it clear where the
courts stand on this issue. If the “father”, whether he knew the child
was his own or not, raised the child and acknowledged it as his own,
he cannot now deny his obligations to the child.

2. Is the non-biological parent entitled to equitable parent status?

In a 1999 Michigan case; Van v. Zahorik, 460 Mich 320; the Michigan
Supreme Court made a decision that stated plainly that a
non-biological father who “was not related by marriage to the child’s
biological parent” is considered a third party, with no parenting time
or custody rights and no obligations of support to the child. The
opinion of the Court was that the doctrine of equitable parenthood
should not be extended to relationships outside of marriage for reasons
of public policy. They felt it was not a judicial decision to make but
legislative issue.
Justice Brickley observed, in a dissenting opinion, that the majority’s
approach was “an adult centered approach to resolve a dispute that
primarily affects the lives and development of children. By placing an
artificial restriction on the definition of “parent”, the majority
absolves itself from addressing…the organizational principal of the
Child Custody Act: the best interests of the child.” There is no
statutory definition of a “parent”. Therefore, the Court should have
acknowledged the fact that Mr. Van, while not the children’s
biological parent, had given the children all the love, affection and
support of a parent. Mr. Van had also been the only father that the
children had known. There should be no limitation to parenthood to
those that are natural or adoptive parents, with all others assumed
third parties.

3. Is there a difference in equitable parent standing for those couples that were
married rather than those that have only had a long-term relationship?

In Van v. Zahorik, 460 Mich 320, the court issued the opinion that men
lived with their long-term girlfriends and helped raisse their
children did not qualify for equitable parent status. They were only
qualified as third parties regardless of the fact that they believed
the children were their own. So, how then do married men fare in the
equitable parenthood quest?
A Wexford County family judge recently awarded temporary custody of a
twelve-year-old girl to her mother’s soon-to-be ex stating “…it is
undisputed that by every measure of human interaction, Mr. Smith was
fulfilling the role of father, to the girl from her birth…”
(Smith v. Smith) The Smiths had been together since before the girl’s
birth. The Michigan Court of Appeals is currently hearing this case.
We will soon see how the husband fares in getting equitable parent
standing. However, the test for equitable parent status is:
“A husband who is not the biological father of a child born or
conceived during wedlock may be considered the natural father
of that child where (1) the husband and the child mutually
acknowledge a relationship as father and child, or the
mother of the child has cooperated in the development of
such a relationship over a period of time prior to the filing
of the complaint for divorce, (2)the husband desires to have
the rights afforded to a parent, and (3) the husband is
willing to take on the responsibility of paying child

4. Does the non-biological father have a legal right to custody and parenting time
and the obligation of support for the child or does the biological father?

This question has been answered several times. The answer depends
upon whether or not the non-biological father has been awarded
equitable parent status. If the non-biological father has been
granted equitable parent standing then he is, by definition,
responsible to the child for support and legally able to pursue
custody and parenting time rights. If, on the other hand, the
non-biological father has not been granted this standing, the
biological father is responsible for support.

5. Should the child be told that the person they have believed to be their father
is not?
6. Should the biological father be brought into the child’s life? If so, who
decides this?

This question has yet to be answered effectively by the courts. The
parties involved, however, have answered this question, in most cases.
In most of the cases on this subject, the answer has been a resounding
no. The mothers, who seem to be making a lot of decisions regarding
the future of their children, normally do not intend to tell the
biological father and wish that the non-biological father remove
themselves from the lives of their children as quickly as possible.
Their wish, it seems, is to leave their children fatherless.

7. Is it in the best interest of the child(ren) to revoke or retain the “parental”
rights of teh non-biological father? If so, whose burden is it to prove best

The Child Custody Act outlines the best interests of the child(ren)
(MCL 722.23, MSA 25.312(3)) as follows:
(a) The love, affection, and other emotional ties existing
between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give
the child love, affection, and guidance and to continue
the education and raising of the child in his or her
religion or creed, if any.
(c) The capacity and disposition of the parties involved to
provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this
state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
(e) The permanence, as a family unit, of the existing or
proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court
considers the child to be of sufficient age to express a
(j) The willingness and ability of each of the parties to
facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent or the
child and the parents.
(k) Domestic violence, regardless if the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a
particular custody dispute.
The statute states that these standards must be used in all custody
decisions and that these factors must be weighed on both sides to see who
comes out more favorably.
In the recent case, DeLeon v. Perez, Judge J. William Callahan refused to
revoke the non-biological father’s acknowledgment of paternity, as
requested by the mother of the child. Mr. Perez and Mrs. DeLeon were
dating at the time she became pregnant. Believing himself to be the father
of the child, Mr. Perez helped Ms. DeLeon with expenses related to the
pregnancy, birth, and later signed an acknowledgment of paternity. His
name appears on his son’s birth certificate. After a year had gone by Ms.
DeLeon decided she no longer wanted to be with Mr. Perez and filed a suit
to have his paternity of the child denied. Paternity tests revealed that
Mr. Perez was not the father of the child. The judge, however, stated that
the mother “failed to fulfill her burden of proof by clear and convincing
evidence that considering the equities of the case, revocation is proper.”
Mr. Perez most obviously wanted to retain his rights to the child as a
parent, was willing to support the child and was willing to facilitate a
civil relationship with Ms. DeLeon in order to retain his parenting time
with the child. Judge Calllahan decided that the party filing for
revocation has the job to prove by clear and convincing evidence that not
only is the man not the father, but, that revoking his paternity rights is
proper considering the equities of the case.

This subject is still under much debate in the court system. some things have been defined on a case-by-case basis, with others being defined across the board with statutes or by case law. These questions are affecting more and more people everyday and the answers to them are needed now more than they have ever been needed prior.