A Biological Father’s Rights to Revoke/Claim Paternity.

992546_62203472By Dennis Germain and Anthony DeMatteis.

Imagine the following situation: Kim gives birth to a child.  Michael is the biological father and on the child’s birth certificate.  For four years, Kim and Michael raise the child, living together as boyfriend and girlfriend.  Kim and Michael get in a fight and the relationship ends.  Kim takes the child and forever forbids a relationship between the child and Michael.  When Michael cries out for help, the court shut its doors in his face and says “We will not hear your case!” 

The above situation describes the facts of a real case; Michael Barnes v Kim Jeudevine.*  In this case, the courts’ operation under the Paternity Act allowed Kim Jeudevine to deceive her ex-husband, manipulate nature and the judicial system, and choose, at her own leisure, who is and who is not the father of her child.  It allowed her, for four years, under legally false pretenses, to receive support from Michael Barnes, her boyfriend and father of her child.  Subsequently, it allowed her the leisure to again change her mind about who is and who is not the father, and also provide her a forum to return and seek support from her former ex-husband, who was not the biological father.  Finally, it barred Michael Barnes from seeking fatherhood of his own child.

What is most alarming is that the above case is just one of many similar cases!  For decades, under Michigan courts’ concerning interpretations under the Paternity Act (e.g., decisions such as or stemming from Girard v Wagenmaker**), biological fathers have been denied the right to even pursue a claim for paternity of their children in instances where the child at issue was born or conceived during the mother’s marriage to another man, and also in other circumstances where paternity has already been established.

However, on June 12, 2012, Governor Rick Snyder signed Senate Bills 557, 558, and 560, and House Bills 5328 and 5329, allowing for and accommodating biological fathers to initiate action to establish paternity of their children under limited circumstances.

Unfortunately, I have come across many articles and reports by respected Metro Detroit news anchors, journalists, and even family law attorneys stating that enactment of these bills effectively revoked the Paternity Act.  THIS IS NOT TRUE!!   The Paternity Act has not been revoked and is still codified at MCL 722.711, et seq.

What Senate Bill 557 does do is establish the “Revocation of Paternity Act,” now seen at MCL 722.1431 et seq.  Again, this enactment does not revoke the Paternity Act, but instead, under limited circumstances, allows an alleged father to seek the revocation of a prior paternity determination or presumption.

As to a biological father’s right to initiate action, the most noteworthy effectuations of the Revocation of Paternity Act concern revocation of an acknowledgement of parentage (Section 7), revocation of an order of filiation (Section 9), and revocation of a husband’s or ex-husband’s paternity (Section 11).  The significance of these sections is that revocation of a non-biological father’s paternity is a pre-requisite for a biological father to ultimately assert paternity.

Revocation of Acknowledgment of Parentage. See MCL 722.1437.

An acknowledgement of parentage occurs when a child is born outside of marriage, and the mother and man considered to be the father fill out a form acknowledging he is the father of the child.***  However, sometimes the acknowledged father is not the real father.  The biological father may now initiate an action to revoke an acknowledgment of parentage and seek paternity himself.  To revoke the acknowledgment of parentage, the alleged father has the burden of proving, by “clear and convincing evidence,” that the acknowledged father is not the father of the child.  This can be done by DNA evidence.   Additionally, this process requires filing an affidavit stating facts that demonstrate one of the following has occured:

(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; or

(e) Duress in signing the acknowledgment.

Finally, such an action to revoke must be filed within three years of the child’s birth, or one year from that date the acknowledgment of paternity is signed (whichever is later).

Revocation of Default Order of Filiation. See MCL 722.1439.

A mother may obtain an order of filiation declaring a man’s paternity, without his presence, where he fails to respond to initiation of court proceedings.****  Such an Order of Filiation can occur even if that man is not the biological father.  In such a case, the biological father may now initiate an action to revoke the order of filiation and seek paternity himself.

Such an action to revoke must be filed within three years of the child’s birth, or one year from that date the acknowledgment of paternity is signed (whichever is later).

Revocation of a Husband or Ex-Husband / Presumed Father’s Paternity. See MCL 722.1441.

Michigan has long held that, despite whatever biology tells us, a child conceived or born during the marriage of a couple is presumed to be the legitimate product of the marriage.*****  Perhaps the spotlight of the Revocation of Paternity Act is that a biological father may now, under specified circumstances, initiate an action to battle this presumption, revoke a husband’s paternity, and seek paternity himself.  There are three, very limited ways that a biological father may initiate such an action.

The first way is that the biological father must show that (a) he did not know or have reason to know that the mother was married at the time of the child’s conception, (b) the husband or ex-husband / presumed father and mother, at some time, mutually and openly acknowledged a biological relationship between the alleged father and the child, and (c) the action is filed within three years after the child’s birth.

The second way is that the biological father must show that (a) he did not know or have reason to know that the mother was married at the time of the child’s conception and (b) the husband or ex-husband / presumed father, having the ability to pay support, has failed or neglected without good cause to provide regular and substantial support for the child for two or more years 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 2 years or more before the filing of the action, or the child is less than three years old and the husband or ex-husband / presumed father lives separately from the child.

The third way is that the biological father must show that (a) even if the child was married during the marriage, the mother was not married at the time the child was conceived, and (b) the action is filed within three years after the child’s birth.

Savings Clause 

Any of the aforementioned actions requiring filing within three years of the child’s birth, or one year from signature, may avoid this requirement if the biological father files within one year of the effective date of the Revocation of Paternity Act.  I.e., he must file by June 12, 2013.

The Best Interests of the Child. See MCL 722.1443

In any of the aforementioned actions, the court may still refuse to grant a requested order if the court finds evidence that such an order would not be in the best interests of the child under consideration of the following factors:

(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.

END.

* Barnes v Jeudevine, 475 Mich. 696; 718 N.W.2d 311(2006)

** Girard v Wagenmaker, 437 Mich. 231; 479 N.W.2d 372 (1991)

*** MCL 722.1003

**** MCL 722.717

***** See Raleigh v Watkins, 97 Mich App 258, 293 NW2d 789 (1980); Johnson v Johnson, 93 Mich App 415, 286 NW2d 886 (1979).

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Please note that this article is intended to be academic in nature.  Its purpose is to serve as a memorialization of research as well as invoke community discussion.  This article shall not constitute legal advice.  Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter.  It is important to always consult an attorney regarding legal matters.  Contributor to this article, Anthony A. DeMatteis, is not an associate of Best Interest Law.
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I am Dennis M. Germain, a family law attorney who promotes amicable resolution to domestic relations matters.  I primarily practice in Wayne County, Macomb County, and Oakland County.  My office and contact information is listed as follows:

www.bestinterestlaw.com
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315

 Ph: (586) 219-6454
Fax: (586) 439-0404
Email: dennis.germain@bestinterestlaw.com

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