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Committee - Family Law
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Family Law Committee

Co-Chair - Craig Feringa
Co-Chair - Kristin Stone

This Committee concerns itself with the practice of family law, the improvement of the family law and friend of the court systems and the professional development of the family attorneys in Macomb County.

 

“Who’s Your Daddy?” That Could Be Complicated Kid.
Michigan’s Revocation of Paternity Act.

By Craig Feringa

In 1977 the Michigan Supreme Court in Serafin v. Serafin 401 Mich. 629 (1977) abrogated “Lord Mansfield’s rule” that held that “the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage.” This meant, of course, that come hell or high water, if a child was born during a marriage, it was the issue of the marriage.

Serafin, however, provided no such opportunity for the ‘other man’ in the equation.  The Paternity Act of 1956 only allowed such a man to seek paternity if the child was “born out of wedlock”.  Even though the act allowed him to file an action while the mother was still pregnant, if she married someone before the birth of the child, the man’s standing to bring such an action was destroyed and his action dismissed.

This article will provide a brief overview of the Revocation of Paternity Act signed into law with immediate effect on June 12, 2012, and provide some practice tips for family law practitioners.  This statute can be found beginning with MCL 722.1431 to MCL 722.1445.   For a more complete discussion of the act, please use the QR code provided to link to the family law committee’s page, or go to www.macombbar.org and click on the Family law page.

It is important to first state that the Revocation of Paternity Act of 2012 does not repeal the Paternity Act of 1956. In order for the Revocation of Paternity Act to be invoked, there must already be a valid acknowledgment of parentage, an order of filiation, or a child born during a marriage.  If not, use the Paternity Act to provide a process to determine paternity. 

If paternity has been established, identify one of the following foreseeable fact patterns:

·      A married woman who becomes pregnant with someone not her husband and.

·      An unmarried woman who becomes pregnant and a person, not the bio-dad, signs the Acknowledgment of Parentage.

·      A married or unmarried woman whose child has been the subject of an order of filiation.

After the fact pattern has been identified, determine what type of ‘father’ is seeking to revoke the determination of paternity of a child.  The Revocation of Paternity act, section 722.1431 defines four different types of fathers:

(1)  “Acknowledged father”: a man who has affirmatively held himself out to be the child’s father by executing an acknowledgment of parentage under the Acknowledgement of Parentage Act, MCL 722.1001 to 711.1013.

(2)  “Affiliated father”: a man who has been determined in a court to be the child’s father.

(3)  “Alleged father”: a man who by his actions could have fathered the child.

(4)  “Presumed father”: a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth.

Next, determine what section applies to what type of existing ‘father’.  MCL section 722.1435 provides some guidance as to where to look for the provisions that apply to the different fact scenarios.

(1)  Section 7 governs an action for an alleged father to set aside an acknowledgment of parentage by an acknowledged father.

a.     Section 7 is similar to the prior method to revoke an affidavit of parentage.  The action is to be filed within 1 year after the date that the Acknowledgment was signed, or within 3 years after the birth of the child, whichever is later.  These requirements, however, do not apply to an action filed within 1 year of the effective date of the statute.  Presumably, therefore, the age of the child is not relevant in any way if an “alleged father” files an action before June 12, 2013.

b.     The alleged father is required to provide a supporting affidavit that asserts either:
 

  1. A Mistake of Fact
  2. Newly discovered evidence that by due diligence could not have been found before the acknowledgment of parentage was signed
  3. Fraud
  4. Misrepresentation or misconduct
  5. Duress in signing the acknowledgement

c.     If the court finds that the affidavit is sufficient, the court shall order a DNA test.  The alleged father has the burden of proof by clear and convincing evidence to prove that the acknowledged father is not the bio-dad.

d.     If DNA testing determines that the alleged father is the bio dad, the clerk shall send the order revoking the acknowledgment of parentage and may amend the birth certificate.

(2)  Section 9 governs an action for an alleged father to set aside an order of filiation dealing with an affiliated father.

a.     This fact pattern usually includes those Default Judgment of Support that are entered by the prosecutors on behalf of the Department of Human Services, or those DP cases where a man has presumed that he was the father, or that a court, without DNA testing, has determined that a man was the father.

b.     A motion, under the existing (closed) case number, must be filed within 3 years after the child’s birth or within 1 year after the order of filiation.  The same ‘saving’ provision applies in that anyone can file within 1 year of the effective date of the statute.   MCL 722.1439(1)(3), however, provides that “if the court determines that a motion under this section should be denied and the order of filiation not be set aside, the court shall order the person who filed the motion to pay the reasonable attorney fees and costs incurred by any other party because of the motion”.

(3)  Section 11 governs an action for an alleged father to determine that a presumed father is not a child’s father. (The most complicated sections of the Act)

a.     MCL 722.1441 Determination that child born out of wedlock

                                               i.     AN ACTION FILED BY THE MOTHER

1.     If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the child’s mother and either of the following applies:

All of the following apply:

  1. The mother identifies the alleged father by name in the Complaint or motion commencing the action.
  2. The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.
  3. The action is filed within 3 years after the child’s birth. (saving clause exists)
  4. Either the court determines the child’s paternity or the child’s paternity will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.

b.     All of the following apply

  1. The mother identifies the alleged father by name in the complaint or motion commencing the action.
  2. Either of the following applies:

1.     The presumed father, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action, or in a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before filing of the action.

2.     The child is less than three years of age and the presumed father lives separately and apart from the child. The requirements that the child is less than three years of age at the time of the action is filed does not apply to an action filed on or before one year after the effective date of this act.

3.     Either the court determines that the child’s paternity or the child’s paternity will be established under the law of the state or another jurisdiction if the child is determined to be born out of wedlock.

                                             ii.     AN ACTION FILED BY THE PRESUMED FATHER (HUSBAND)

1.     If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within three years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumes father and the mother. The requirement that an action be filed within three years after the child’s birth does not apply to an action filed on or before one year after the effective date of this act.

                                            iii.     AN ACTION FILED BY THE ALLEGED FATHER (BIO-DAD) MARRIED WOMAN

1.     if a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by an alleged father and any of the following applies:

a.     All of the following apply:
 

  1.  the alleged father did not know or have reason to know that the mother was married at the time of conception.
  2. The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.
  3. The action is filed within three years after the child’s birth. The requirement that an action be filed within three years after the child’s birth does not apply to an action filed on or before one year after the effective date of this act.
  4. Either the court determines the child’s paternity or the child’s paternity will be established under the law of the state or another jurisdiction if the child is determined to be born out of wedlock.

b.     All of the following apply:

  1. the alleged father did not know or have reason to know that the mother was married at the time of conception.
  2. Either of the following applies:

1.     the presumed father, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of two years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of two years or more before the filing of the action.

2.     The child is less than three years of age and the presumed father lives separately and apart from the child. The requirement that the child is less than three years of age at the time of an action is filed does not apply to an action filed on or before one year after the effective date of this act.

3.     Either the court determines the child’s paternity or the child’s paternity will be established under the law of the state or another jurisdiction if the child is determined to be born out of wedlock.

c.     Both of the following apply:
 

  1. the mother was not married at the time of conception.
  2. The action is filed within three years after the child’s birth. The requirement that an action be filed within three years after the child’s birth does not apply to an action filed on or before one year after the effective date of this act.

                                            iv.     AN ACTION BROUGHT BY THE DEPARTMENT OF HUMAN SERVICES

1.     the child has a presumed father and the child is being supported in whole or in part by public assistance, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the Department of human services and both of the following apply:

a.     either of the following applies:

  1. the presumed father, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of two years or more before the filing of the action or, if a support order has been entered, his failed to substantially comply with the order for a period of two years or more before the filing of the action.
  2. The child is less than three years of age in the presumed father lives separately and apart from the child. The requirement that the child is less than three years of age at the time of an action is filed does not apply to an action filed on or before one year after the effective date of this act.
  3. Either the court determines the child’s paternity or the child’s paternity will be established under the law of the state or another jurisdiction if the child is determined to be born out of wedlock.

2.     An action under this section may be brought by a complaint filed in an original action or by a motion filed in an existing action, as appropriate under this act and rules adopted by the Supreme Court.

If an action is brought by the by an alleged father who proves by clear and convincing evidence that he is the child’s father, the court may make a determination of paternity and enter an order affiliation is provided for under such section 7 of the paternity act, MCL 722.717.

JURISDICTION AND COURT DISCRETION

            After all the above has been done, the court still has the authority under MCL 722.1443 section (4) to not revoke paternity despite all the clear and convincing evidence in the world.  This section is a huge opening for practitioners to convince the court to put back on the blindfold and send the litigants on their way.

            For procedures and other miscellaneous provisions please refer to the complete article on the Macomb County Bar’s website.

CONCLUSION

            In the past there were bright lines drawn based on the social economic legal structure that was based on the father’s rights to his estate. Western society has changed to where the term ‘family’ has many different facets and appearances.  Reports, using DNA results, have determined that up to 28% of the population have fathers other than the persons they thought were their dads. Other reports cite studies that indicate that 42% of Michigan babies are born to unmarried women.  The face of ‘family’ is changed and will continue to change.   

For us family law practitioners, this law provides an opportunity for more business and lots and lots of billable hours.  There will be lots of discovery and subsequent evidentiary hearings about whether a man knew or had reason to know that the woman was married at the time of conception.   There will be DNA evidence to obtain.  Then, when all is said and done, despite all the clear and convincing evidence, there will be an opportunity to examine whether the current father was a ‘good dad’, and whether continuing his relationship with the child is in the child’s best interests.

Despite reality, the law allows a huge amount of judicial discretion. Knowing your judge, your FOC investigator, the FOC psychologists, therefore, will be more important than ever.  Judges and FOC personnel will be bombarded with even more attempts at ex-parte advocacy behind closed doors.  Therapist experts will be hired and deposed.  The wealthier litigants will be able to hire more experts to forward their arguments, and the less wealthy may lose their children.

Finally, permit me a personal remark, regardless of the circumstances and outcomes of litigation, this I know:  we will harm children.  While I have little hope of us adopting such a pledge, I suggest that when it comes to children that we family law practitioners adopt the oath of Hippocrates, “Primun non nocere”, and have the wisdom to counsel to that end.

 

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