Unmarried couples: Who has child custody in Michigan?

Initial child custody in Michigan

Child custody in Michigan requires a Court order.  In reality, many unmarried couples are raising children together. The question often arises: I am not married, we have a child, who has child custody in Michigan? The answer is found in a Michigan statute:

MCL 722.1006 Grant of initial custody.

After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.

MCL 722.1006

There are a couple of important points to be separated from this statute. First, the mother is granted initial custody of the child when the father and mother sign the Affidavit of Parentage under before a notary public. Here is a link to the Affidavit of Parentage:

Click here.

There is legal jargon in this statute, “without prejudice to the determination of either the parent’s custodial rights.” This means this initial award of child custody does not adversely affect a father’s right to seek child custody, child support, or parenting time. So when an unmarried couple has a child together, then cohabitate together, the mother, in the eyes of the law, has custody of the child. There are two ways to change this preliminary grant of child custody. First, a family law court, like the 13th Circuit Court, issues a child custody order. Second, the mother and father put their custody agreement into writing, and the Court reviews the agreement. Simply writing an agreement between the mother and father with no Court approval probably will not overturn the initial custody provided by the statute and a properly executed Affidavit of Parentage.

What does this initial custody do?

The initial custody allows minimal protection for unmarried mothers and their children. A father that takes custody of his child, where there is no proper Court order, will invoke the parental kidnapping statute, MCL 750.350a.

This MCL 750.350a states:

750.350a Taking or retaining child by adoptive or natural parent; intent; violation as felony; penalty; restitution for financial expense; effect of pleading or being found guilty; probation; discharge and dismissal; court proceedings open to public; retention of nonpublic record by department of state police; defense.

Sec. 350a.

(1) An adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights under a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.

The Affidavit of Parentage establishes which parent under the parental kidnapping statute has legal custody of the child. That parent is the mother. Unmarried fathers need to aware of this legal fact. The statute, MCL 722.1006, encourages an unmarried father to seek legal action to establish parenting time and custody. Otherwise, the father risks invoking a criminal statute.

The best course of action is for a father to initiate child custody in proceedings that will eventually result in a Court Order for child custody in Michigan.

About the author:

Matthew Benedict is a family law attorney practicing in Traverse City Michigan and servicing clients in all of Northern Michigan. Call today for an appointment at 231-883-4170. Visit my Family Law main page for more information about family law services.

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