UPDATE: See Post about June 12, 2012 enactment of the Revocation of Parentage Act. The cases discussed below may be decided differently under the new law.
In an interesting parentage case, Barnes v Jeudevine, decided by the Michigan Court of Appeals on August 23, 2005, Husband and Wife separated. Wife began a relationship with Boyfriend (the Plaintiff in the parentage case brought under the Paternity Act.). She became pregnant, but concealed her pregnancy from Husband. He filed for divorce. She did not participate in the divorce and a default judgment of divorce entered, which recited the language “it further appearing that no children were born of this marriage and none are expected," thus reserved no rights or obligations with respect to any children.
A few months after the divorce the child was born and both Mom and Dad signed an Acknowledgment of Parentage. The child shared Dad's last name. Later Mom and Dad separated; he filed an action under the Paternity Act. [Practice Note: An Acknowledgment of Parentage makes Dad a legal father, and he could/should have filed a custody case.]
Mom defended claiming that Dad lacked standing because the child was conceived while she was married to Husband. In other Michigan cases, we've seen that this defense usually works and the biological father is out of luck. [See, for example, the most recent case, Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172]
Here, the court of appeals distinguished the case factually from other cases, allowing the biological father to pursue his request for custody / parenting time.
NOTE: Since this blog post was published there have been sweeping changes to Michigan's Parentage laws. Click here to read Blog Post Sweeping New Changes to Parentage Laws in Michigan. If you have a paternity issue involving a child born or conveived while the mother was married to another man and the mother and child live in Michigan, call Jeanne Hannah's office at 231-275-5600 to schedule a telephone conference to discuss how the new law may impact your particular parentage rights.
Mom defended by saying that Dad had no standing to sue under the Paternity Act because the child was conceived while she was married to another man. The Paternity Act, MCL 722.711 et seq., confers standing on the father of a child born out of wedlock to sue to establish paternity. See McHone v Sosnowski, 239 Mich App 674, 677 (2000); MCL 722.714(1) and (8).
The Paternity Act defines a child born “out of wedlock” as one “begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.” MCL 722.711(a).
Under the second clause, standing to assert parentage requires an earlier judicial determination that the child is not an issue of the marriage. McHone, supra at 677-678. The trial court dismissed the paternity case saying that there had been no adjudication that Husband was not the legal father.
In Brown, the court held that the language in the default judgment “it further appearing that no children were born of this marriage and none are expected" was an adjudication on the merits that the child involved was not a child of the marriage, and remanded to the trial court for further proceedings.
QUERY: Could this case have been easier if Dad had filed a custody case? fn 1
If a custody case had been filed instead, could Mom have raised the issue of standing there since both Mom and Dad had executed the acknowledgment of parentage? The form is clear - the parties affirm, under penalty of perjury, that they are the natural parents of the child. The form is voluntary, a fact that is stated on the form. By signing the acknowledgment, the writers waive the rights to genetic testing, a court appointed attorney, and/or court determination of paternity. Signing of the form creates the responsiblity to support the child, a fact that is also clearly stated.
The standard for claim for revocation of an acknowledgment of parentage requires facts that constitute one of the following: (a) mistake of fact; (b) newly discovered evidence that by due diligence that could not have been found before the acknowledgement was signed; (c) fraud; (d) misrepresentation or misconduct; or (e) duress in signing the acknowledgment.
fn1 See Hoshowski v Genaw, 230 Mich App 498 (1998): "We hold that the parties' properly executed affidavit of parentage establishes plaintiff as a parent under the Revised Probate Code, and that plaintiff was not required to first file an action under the Paternity Act before seeking custody and parenting time under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq.
See also Department of Social Services v Baayoun, 204 Mich App 170, 514 NW 2d 522 (1994). In this case, the issue was standing. After the mother was divorced by a default judgment that made no mention of any children of the marriage, the DSS sued to establish paternity to collect child support. The COA upheld the trial court's dismissal, stating:
"We find that this case is controlled by the Supreme Court's decision in Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991), and we, therefore, reverse the trial court's denial of summary disposition. Plaintiffs do not have standing to bring this case because the child was not born out of wedlock within the meaning of the Paternity Act.
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". . . [a]lthough Girard involved the filing of a complaint by a putative father and the instant case is a suit initiated by the DSS on behalf of the mother and child, the definition of "child born out of wedlock" remains the same and either the putative father or the DSS must establish that the statutory requirements of who constitutes a "child born out of wedlock" have been met in order to have standing to bring an action under the Paternity Act."
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