Child Support
- How is a father protected from paying child support for a child which
is not his child?
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Question
I'm writing you in regards to marriage and support laws. I've had
two kids out of wedlock and the mother was married. She was separated
from her husband and I was separated from my wife. The law is forcing
her husband to be named as the father and having him pay support.
I feel it is unfair to all the parities including the kids. It's
a growing concern that fathers are forced to pay large sums of money for
a child that is not theirs or of whom they have no knowledge. They
are faced with jail. These fathers do not know how to speak up.
How are their rights protected.
Answer
There are procedures under the law called "due process" which require that
a person against whom a lawsuit is initiated (establishment of child support
is actually a lawsuit) be properly served with notice and have the opportunity
to appear and defend themselves. When a person (defendant) is sued
and fails to respond, that person can be "defaulted" and the court will
then likely grant the plaintiff whatever is being asked. In the case
of child support, as long as a defendant participates in the proceeding,
the man must be proven to be the father either by 1) acknowledgment of
paternity, 2) genetic testing, or 3) a child born during a marriage is
presumed to be the product of that marriage. Under those conditions,
the court then will normally establish a child support obligation and may
also determine custody (physical and legal) and parenting time. If
a child is born during a marriage but is not a product of that marriage,
the court must exclude the child through testimony or other proof (otherwise,
that child is considered to be a child of the husband).
Once the support obligation is established by the Court, the payer is
required to make the support payments as ordered. Failure to do so
results in enforcement action by the Friend of the Court, including a process
called the "contempt procedure". The payer is required to appear
in court and to explain why he or she is not following the orders of the
court. Normally, the payer is given many opportunities to comply
with the court's orders before the Judge will ever consider jail as a sanction.
Failure to appear for a court hearing, however, often results in the judge
ordering a bench warrant for the payer's arrest and a bond that needs to
be posted to secure the payer's release and appearance at a hearing to
make up for the one that was missed.
The above is a simplified explanation of the procedures under the law
that can, at times, be complicated. Any payer that has questions
is encouraged to contact the Friend of the Court in their jurisdiction.
It is also important to understand that most of the time a payer gets
into trouble because they ignore the court's orders to pay support and
to keep the Friend of the Court advised of their situation. Further,
if a payer has a change of circumstances (such as job loss), that person
must ask the court for a modification of their support, otherwise the amount
that is ordered continues to accrue and cannot be retroactively modified.
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Last Updated: 3-6-09
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014 or e mail to: pharter@calhouncountymi.gov