A decision handed down by the Michigan supreme court in Barnes v Jeudevine, Docket No. 129606, released on July 26, 2006 only reaffirms my strong belief that the Michigan Legislature needs to address the issue of complete revision of the Paternity Act. I firmly believe that the piecemeal fashion in which the Paternity Act has been amended does nothing more than confuse the issues.
Under the Uniform Parentage Act, a father such as Barnes would be permitted to rebut the presumption of legitimacy because he, as well as the ex-husband, would be a “presumed father.” The UPA would move Michigan along in parentage actions in the direction that California has done judicially, recognizing the rights of fathers to establish parentage where they’ve formed a bonded, parent-child relationship with their child, despite the mother’s marital status. See, for example, a case in which the facts are not terribly dissimilar to Barnes: Brian C. v. Ginger K. (2000) 77 Cal. App.4th 1198 [ 92 Cal.Rptr.2d 294]. Court of Appeal, Fourth District, Division 3.
Barnes v Jeudevine: The Decision
The Michigan supreme court reversed the court of appeals’ decision in Barnes v Jeudevine, in an opinion released on July 26, 2006. Docket No. 129606. As a result, Barnes, who filed an action seeking a determination of paternity of a child conceived while the child’s mother was married to another man—a child whom he co-parented for 4 ½ years, and a child who believes that Barnes is his father—is denied the opportunity to establish legal parentage.
The majority opinion: The court was split 4-3 in its decision. The majority, in an opinion authored by Justice Weaver, held that a default judgment of divorce stating that it appears that “no children were born of this marriage and none are expected” is not clear and convincing evidence that the child was not an issue of the marriage. Thus, the marital presumption applies and Barnes is deprived of standing to sue to determine his legal parentage of the child.
In the prior divorce, Jeudevine did not appear or file a response to the complaint for divorce. The judgment of divorce was entered by default. The supreme court succinctly summarized the court of appeals' position on the validity of default judgments, stating: "The Court of Appeals correctly recognized that “[a] default judgment is just as conclusive an adjudication and as binding upon the parties of whatever is essential to support the judgment as one which has been rendered following answer and contest,” citing Perry & Derrick Co, Inc v King, 24 Mich App 616, 620 (1970). However, just as quickly, the supreme court eviscerated the sanctity accorded such a judgment.
In Barnes, the child was born four months after the entry of the mother's judgment of divorce. Barnes and Jeudevine signed an affidavit of parentage and Barnes is named on the birth certificate as the child’s father. Barnes lived with Jeudevine and the child for four and one half years. When their relationship terminated, Jeudevine refused to permit him to see the child and he sued to establish parentage.
Jeudevine responded to Barnes’ suit by neither admitting nor denying that he was the child’s father. She admitted to signing the affidavit of parentage but claimed that she did so under duress. She denied that the child was born “out of wedlock,” because the child had been conceived while she was legally married to her ex-husband. She moved for summary disposition and the trial court granted her motion, finding that (I) the child was conceived during the marriage and (2) there was no court determination that the child was a child born or conceived during the marriage but is not the issue of that marriage.
The court of appeals reversed, holding that the statement in the default judgment of divorce that “no children were born of this marriage and none are expected” was a determination by a court that the child was not an issue of the marriage. Jeudevine appealed. The supreme court ordered the case set for oral argument to determine whether leave should be granted. The litigants were ordered to brief two issues: (1) whether plaintiff lacked standing to proceed under the Paternity Act, MCL 722.711 et seq., where the subject child’s mother was married at the time of the child’s conception; and (2) whether the default judgment of divorce amounted to a judicial determination that the child was born or conceived during the marriage.
The Paternity Act defines “[c]hild born out of wedlock” as
a child 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).]
Standing under the Paternity Act to establish parentage is granted only to a mother, a father, or in certain circumstances, the Department of Human Services. MCL 722.714.
Michigan courts have continuously emphasized that “[t]he presumption that children born or conceived during a marriage are the issue of that marriage is deeply rooted in our statutes and case law” and that the presumption of legitimacy can be overcome only by a showing of clear and convincing evidence. See, e.g., In re KH, 469 Mich 621, 634 (2004).
The Barnes majority then reiterated the holding from Girard v Wagenmaker, 437 Mich 231, 243 (1991) that relied upon a hyper technical analysis of the grammatical construction of the Paternity Act (“has determined” is the present perfect tense of the verb “determine”). Resorting to lay and legal dictionaries for a definition of the word “determination,” the majority, in a strained construction, held that the language in the default judgment could not overcome the strong and longstanding marital presumption of legitimacy. According to the majority, either the legal mother or the legal (marital) father would have to rebut the presumption in order for there to be a conclusive determination that the child is not the issue of the marriage.
The majority, in a manner as abrupt as that with which it had demolished the effectiveness of the default judgment, then brushed aside Barnes’ reliance upon the affidavit of parentage and the birth certificate as proof of his parentage, stating that they were not court determinations that the child was born out of wedlock. Neither was considered as clear and convincing evidence of parentage.
Justice Kelly’s dissent: Justice Kelly wrote a well-reasoned dissent. She would find that the default judgment was legally sufficient as a judicial determination that the child in question is not the issue of defendant’s marriage. Justice Kelly decried the majority’s decision that “rewards defendant for her refusal to reveal the fact of her pregnancy and the identity of her child’s father while the divorce was pending.” She would uphold the validity of the default judgment on the issue of non-paternity of Jeudevine’s ex-husband and would allow Barnes to have the opportunity to assert his paternity and to prove it through blood or DNA (deoxyribonucleic acid) testing that would make a determination on the question relatively easy and accurate.
Citing a list of cases where the court refused to grant standing to putative biological fathers for the avowed purpose of protecting the presumption, [See fn. 1], Justice Kelly made it clear that she disapproved of using the presumption of legitimacy to render children fatherless, since it is clear that the child will not find a father in the ex-husband and is, by the court’s decision, deprived of the only father the child knows. Then she cited the very case upon which litigants have traditionally relied in order to obtain a court determination of non-paternity of a husband:
“If the function of a court is to find the truth of a matter so that justice might he done, then a rule which absolutely excludes the best possible evidence of a matter in issue rather than allow it to be weighed by the trier of fact must necessarily lead to injustice. Further, when a court voluntarily blindfolds itself to what every citizen can see, the public must justifiably question the administration of law to just that extent.” [Serafin v Serafin, 401 Mich 629, 635-636; 258 NW2d 461 (1977), quoting the Texas Court of Civil Appeals in Davis v Davis, 507 SW2d 841, 847 (Tex Civ App, 1974).]
In summation, Justice Kelly was terse and concise. She stated:
“Defendant should not be heard now to rely on a presumption that she should have asserted in the divorce court. The majority apparently concludes that the presumption arose when her child was born and has force and effect outside and despite the language of the divorce judgment. Even if that were true, and I question it, defendant should not be permitted to rely on the presumption to defeat plaintiff's standing in his paternity action. If she wishes to assert it, defendant should seek to reopen the divorce case. For this Court to place the presumption of legitimacy over the judgment of divorce is to allow defendant to defeat plaintiff's standing in the paternity action. This is despite the fact that the presumption that defendant relies on likely would have been rebutted already but for her deception of her husband and of the divorce court. The result is ill-reasoned and unjust.”
Justice Markman’s dissent: Justice Markman also dissented, Cavanagh J, joining with him, stating:
“I respectfully dissent. I cannot join the majority’s opinion, which would reverse the Court of Appeals, and which would deny plaintiff-- who no one disputes is the biological father of the child at issue-- the right to be the father of the child he has raised for over four years. Instead, the majority would leave this child without a father. In the process, the majority would render a default judgment in this case meaningless; it would condone and encourage gamesmanship by a party to a child custody proceeding; and it would allow a party to prevail, in significant part because of that party’s own delinquency in failing to participate in an earlier judicial proceeding.
Justice Markman would find that the default judgment of divorce has the legal effect of admitting all well-pleaded allegations. He said that “[t]he plain language of the judgment could hardly be clearer: ‘no children were born of this manage and none are expected[.]’ Once more, ‘no children were born of this marriage and none are expected[.]’ The trial court thus concluded, not unreasonably, that no children were born of the marriage of Charles and defendant. As such, the child later born to defendant must, for purposes of the Paternity Act, MCL 722.711(a), have necessarily been a ‘child born out of wedlock.’ “ [Emphasis added]
Justice Markman found no equivocation on the part of the trial court and was generally critical that the majority’s decision rendered the default judgment of divorce judgment meaningless on the issue of paternity, calling it “deconstruction”. He was also critical of the decision that deprived the child of a father—in particular a support father—and of the majority’s “blessing to neglect to seek the support to which her child is entitled, solely for reasons of legal strategy. Thus, the majority sanctions defendant’s legal gamesmanship at the expense of the well-being of her child.”
Fn. 1 Other recent cases denying standing to putative fathers are: MeNamara v Farmer, 474 Mich 877 (2005); Numerick v Krull, 265 Mich App 232 (2005), lv den 474 Mich 877 (2005); In re KH, 469 Mich 621 (2004); Aichele v Hodge, 259 Mich App 146 (2003), lv den 469 Mich 994 (2004): Kaiser v Schreiber, 469 Mich 944 (2003); Pniewski v Morlock, unpublished opinion per curiarn of the Court of Appeals (June 5, 2003), Docket No. 238767, lv den 469 Mich 904 (2003); In re CAW, 469 Mich 192 (2003).
Read the entire decision in Barnes v Jeudevine here.
(1) Memorandum by Paula Roberts, from CLASP (Center for Law and Social Policy)
(2) THE NEW UNIFORM PARENTAGE ACT (2000): PARENTING FOR THE MILLENNIUM, by Laura Wish Morgan, AAML member
Do you need help with a paternity or child support case? Find a Michigan Family Lawyer near you.