BIOLOGICAL FATHERS HAVE NEW RIGHTS.


Overview Revocation of Paternity ICLE +

Throughout the history of this country until 06/12/2012 In Michigan a Child born during a marriage was legally the child of the husband . Today in Michigan there is a new contrary law.The old law was based upon Lord Mansfield’s Rule. This rule dates back to a decision written in an English case by Lord Mansfield in 1777 in which it was not lawful for either a husband or wife to testify that another man could possibly be the father–thus making a husband “the legal father” of all children born during a marriage. [4]The new rule today is MCL 722.1431 et seq. The Revocation of Paternity Act

The Revocation of Paternity Act, signed into law June 12, 2012, confers jurisdiction on the circuit court to determine the paternity of children in certain circumstances and to set aside acknowledgments, determinations, and judgments relating to paternity. MCL 722.1431 et seq.[3]

The governing authority for paternity actions is the Paternity Act, MCL 722.711 et seq., and MCR 3.217, Actions Under the Paternity Act. Paternity may also be established in an action under the Revocation of Paternity Act, MCL 722.1431 et seq. [1]

A. Jurisdiction, Venue, and Timing

A party may bring an action under the Revocation of Paternity Act through a complaint filed as an original action or by a motion filed in an existing action under the rules adopted by the supreme court. Venue is appropriate in the circuit court for the county in which the mother or child resides or, if neither the mother nor the child reside in this state, in the circuit court for the county in which the child was born. MCL 722.1443(1).[3]

Under the Revocation of Paternity Act, a court may determine a child’s paternity and set aside acknowledgements, determinations, and judgments relating to paternity.[1]

An action under the act may be filed as an original action in the circuit court where either the mother or the child resides or, if neither is in the state, where the child was born. If, however, there is an existing action for support, custody, or parenting time of the child, the action must be brought by motion in that action. MCL 722.1443(1). [1]

A party seeking to set aside a presumed father’s paternity must do so within three years after the child’s birth. MCL 722.1441. A complaint or motion contesting an order of filiation or acknowledgment of parentage must be filed within the later of three years after the child’s birth or one year after the date of the order or the date the acknowledgment of parentage was signed. MCL 722.1437, .1439. The time limits do not apply to actions filed on or before June 12, 2012. MCL 722.1437, .1439, .1441. Moreover, common-law actions to determine paternity are available until two years after the act’s effective date. MCL 722.1443(10). The court may, on request, extend the time for filing an action or motion under the act. MCL 722.1443(12).
[1] For one year from the date of passage of Public Act 159 the child just must be a minor.[trb]

B. Actions to Determine that a Child was Born out of Wedlock[1]

[T]he Revocation of Paternity Act provides broader standing for certain putative fathers, referred to in the act as “alleged father[s],” to bring an action to establish paternity. MCL 722.1431 et seq.[1]

Section 11 of the Revocation of Paternity Act, MCL 722.1441, permits certain parties to file a motion to determine that a child is born out of wedlock. Whether the court may make this determination depends on the party filing the claim and the surrounding circumstances.[3]

1. Who May File

Section 11 of the Revocation of Paternity Act, MCL 722.1441, permits certain parties to challenge a presumed father’s paternity by filing a complaint or motion to determine that a child is born out of wedlock.[1]

An acknowledged father is a man who is determined to be the father based on signing an acknowledgment of parentage. An affiliated father is a man who has been determined to be a child’s father pursuant to a court action. An alleged father is a man who could have fathered the child. A presumed father is a man who was married to the mother at the time of conception or birth. MCL 722.1433.[3]

ACKNOWLEDGEMENT OF PARENTAGE FATHER MAY FILE SO MAY MOTHER ,ALLEGED FATHER AND PROSECUTOR TO REVOKE ACKNOWLEDGEMENT OF PATERNITY

An action to revoke an acknowledgment of parentage may be filed by the mother, the acknowledged father, an alleged father, or a prosecuting attorney. MCL 722.1437. The party filing the claim must provide a supporting affidavit stating one of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
MCL 722.1437(2).

If the court determines that the affidavit is sufficient, it must order blood or genetic tests at the expense of the claimant. The party filing the claim for revocation has the burden of proving by clear and convincing evidence that the acknowledged father is not the father of the child. MCL 722.1437(3). Neither the prosecuting attorney nor the attorney appointed by the county or the court is required to represent any party regarding the revocation action. MCL 722.1437(5).
[3]

AFFILIATED FATHER MAY FILE

“If a child has an affiliated father and paternity was determined based on the affiliated father’s failure to participate in the court proceedings, the mother, an alleged father, or the affiliated father may file a motion with the court that made the determination to set aside the determination.” MCL 722.1439(1). If the court denies a motion and declines to set aside the order of filiation, the person who filed the motion must “pay the reasonable attorney fees and costs incurred by any other party because of the motion.” MCL 722.1439(3).
[3]

MOTHER MAY FILE

The child’s mother may file if
her complaint or motion identifies the alleged father by name and “[t]he 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,” MCL 722.1441(1)(a); or

her complaint or motion identifies the alleged father by name and either (1) for at least two years prior to the action, the presumed father has failed “without good cause, to provide regular and substantial support for the child” or to comply substantially with a support order or (2) the child is less than three years old and does not live with the presumed father, MCL 722.1441(1)(b).[1]

ALLEGED FATHER MAY FILE

The alleged father may file if
he “did not know or have reason to know that the mother was married at the time of conception” and “[t]he 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,” MCL 722.1441(3)(a);

he “did not know or have reason to know that the mother was married at the time of conception” and either (1) for at least two years prior to the action, the presumed father has failed “without good cause, to provide regular and substantial support for the child” or to comply substantially with a support order or (2) the child is less than three years old and does not live with the presumed father, MCL 722.1441(3)(b); or

“the mother was not married at the time of conception,” MCL 722.1441(3)(c).[1]

DHS MAY FILE

The DHS may file if

the child is being supported by DHS and
for at least two years before the action, the presumed father has failed (1) “without good cause, to provide regular and substantial support for the child” or to comply substantially with a support order or (2) the child is less than three years old and does not live with the presumed father.[1]
MCL 722.1441(4) [1]

When a child is being supported by the DHS, the court may determine the child was born out of wedlock if the DHS files an action and either “[t]he 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 the child is less than three years old and does not live with the presumed father. MCL 722.1441(4).[3]

THE HUSBAND OR PRESUMED FATHER MAY FILE

The presumed father may file by raising the issue in a divorce or separate maintenance action against the mother. MCL 722.1441(2).
[1]

The court may determine that the child was born out of wedlock if the presumed father files the action or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. MCL 722.1441(2).[3]

A child conceived and born during a marriage is legally presumed the legitimate child of that marriage and the mother’s husband is legally presumed the father. Under prior Michigan law, a third party lacked standing to challenge this presumption unless a court had previously determined that the child was not the product of the marriage. Thus, if a child had a presumed father, an alleged father had no right establish parentage.[3]

A paternity action may not be used to relitigate the issue of the ex-husband’s paternity if it was established in the divorce proceedings. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986) (support order arising from divorce decree constituted adjudication of paternity and duty of support); see also Rucinski v Rucinski, 172 Mich App 20, 431 NW2d 241 (1988) (where husband had not denied paternity during divorce proceedings, divorce judgment and support order constituted adjudication of paternity); accord Hawkins v Murphy, 222 Mich App 664, 565 NW2d 674 (1997) (when paternity has been determined in prior proceeding involving same parties, it may not be re litigated, even if both parties stipulate to blood tests showing that man is not child’s father).[1] The Recovation of Paternity allows a prior order regarding an affilate father to be relitigated and because of the “or” concerning it appears the presumed father can raise it in a divorce or separate maintenance action or through Public Act 159 2012 Revocation of Paternity MCL 722.1431 et al.

Can the Revocation of Paternity Act be used to litigate the husband’s Paternity decided in a divorce proceedings?[trb]

Under the Revocation of Paternity Act, a court may determine a child’s paternity and set aside acknowledgements, determinations, and judgments relating to paternity. [1] Does the use of “judgements” here include divorce judgements?[trb]

(2) 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 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. The requirement that an action be filed within 3 years after the child’s birth does not apply to an action filed on or before 1 year after the effective date of this act722.1441 Determination that child born out of wedlock. (2). Does the use of “or” allow a husband to choose either.. [trb]

A finding of fact in a divorce decree that a child was born of the parties’ marriage establishes the child’s paternity. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986). Once a child is determined to be a child of the marriage in a divorce judgment, the doctrine of res judicata bars relitigation of paternity, even if the issue was not contested in the divorce. In re Cook Estate, 155 Mich App 604, 400 NW2d 695 (1986) (mother, whose deceased child was declared to be child of her marriage in divorce judgment, was barred from later asserting that her former husband was not child’s biological father). However, a paternity action could be brought after a divorce judgment was amended to provide that the child was not the issue of the marriage. Opland v Kiesgan, 234 Mich App 352, 594 NW2d 505 (1999). [1] These cases precede the Revocation of Paternity Act. Public Act 159.

2. Procedure

If the court determines that the child was born out of wedlock, it must then determine the child’s paternity or paternity must be established under the law of Michigan or another jurisdiction. MCL 722.1441. The court must order the parties to participate in and pay for blood or genetic tests to assist the court in making the determination under the act. Though required, the results are not binding on the court. MCL 722.1443(5).[1]

If an alleged father files an action and 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 of filiation as provided for under section 7 of the [P]aternity [A]ct,” MCL 722.717. MCL 722.1445. However, a court may refuse to enter an order affecting paternity if the court finds evidence that it would not be in the child’s best interests. MCL 722.1443(4).[1]

A judgment entered under the Revocation of Paternity Act “does not relieve a man from a support obligation … before the action was filed” nor does it “prevent a person from seeking relief under applicable court rules to vacate or set aside a judgment.” MCL 722.1443(3). The act “does not establish a basis for termination of adoption” nor does it “establish a basis for vacating a judgment establishing paternity of a child conceived under a surrogate parentage contract.” MCL 722.1443(8), (9). An alleged father convicted of criminal sexual conduct may not bring an action under the act pertaining to a child whose conception resulted from the criminal conduct. MCL 722.1443(14).[1]

If the court determines that the child was born out of wedlock under any of the above scenarios, the court must determine the child’s paternity or paternity must be established under the law of Michigan or another jurisdiction. MCL 722.1441.

If an alleged father files an action and 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 of filiation as provided for under section 7 of the [P]aternity [A]ct,” MCL 722.717. MCL 722.1445.

In any action or motion under the act, the court must order the parties to participate in and pay for blood or genetic tests to assist the court in making the determination under the act. Though required, the results are not binding on the court. MCL 722.1443(5).

A court may refuse to enter an order affecting paternity if the court finds evidence that it would not be in the child’s best interests. MCL 722.1443(4). In making the best interest determination, the court may consider the following:
(a) Whether the presumed father is estopped from denying parentage because of his conduct.
(b) The length of time the presumed father was on notice that he might not be the child’s father.
(c) The facts surrounding the presumed father’s discovery that he might not be the child’s father.
(d) The nature of the relationship between the child and the presumed or alleged father.
(e) The age of the child.
(f) The harm that may result to the child.
(g) Other factors that may affect the equities arising from the disruption of the father-child relationship.
(h) Any other factor that the court determines appropriate to consider.
MCL 722.1443(4).

Courts regularly consider the statutory Best Interest Factors. MCL 722.23

(6) If the case is a title IV-D case, the court may appoint an attorney approved by the office of child support to represent this state’s interests with respect to an action or a motion under this act. The court may appoint a guardian ad litem to represent the child’s interests with respect to the action or motion. MCL 722.1443 (6)

In its discretion, a court “may order a person who files an action or motion under th[e] act to post an amount of money with the court, obtain a surety, or provide other assurances that in the court’s determination will secure the costs of the action and attorney fees if the person does not prevail.” MCL 722.1443(11). The court may also, in its discretion, “order a nonprevailing party to pay the reasonable attorney fees and costs of a prevailing party.” Id.

[3]

A judgment entered under the Revocation of Paternity Act “does not relieve a man from a support obligation for the child or the child’s mother that was incurred before the action was filed.” MCL 722.1443(3). It also does not “prevent a person from seeking relief under [the] applicable court rules to vacate or set aside a judgment.” Id. The act “does not establish a basis for termination of adoption and does not affect any obligation of an adoptive parent to an adoptive child. MCL 722.1443(8). Moreover, it “does not establish a basis for vacating a judgment establishing paternity of a child conceived under a surrogate parentage contract.” MCL 722.1443(9).[3]

An alleged father convicted of criminal sexual conduct may not bring an action under the act pertaining to a child whose conception resulted from the criminal conduct. MCL 722.1443(14).
[3]

SOURCES

[1]
Michigan Family Law Benchbook ch 10 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=10
(last updated 08/10/2012).

[2]
Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=
12 (last updated 08/10/2012).

[3]
Michigan Family Law ch 21 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=21
(last updated 08/10/2012).

[trb]
Terry Ray Bankert, Family Law Attorney, 1000 Beach St., Flint MI 48503. 810-235-1970, http://www.attorneybankert.com, terry@attorneybankert.com, P49048

[4]
http://jeannehannah.typepad.com/blog_jeanne_hannah_traver/2012/06/sweeping-new-changes-to-parentage-laws-in-michigan.html

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