The Michigan Court of Appeals decided Johnson v Smith on November 20, 2007, giving us yet another lesson in how and when an acknowledgment of parentage may be revoked.
In Johnson, the parties were involved in an “on again, off again” relationship that began in the late 1980’s. They never married. A son was born on January 24, 1990 and was named Hollis DeAngelo Smith III. Defendant signed an acknowledgment of parentage on the day following the child’s birth. Orders regarding child support, custody and parenting time were subsequently entered.
The child lived with his mother for much of his life, but resided with the defendant for three years from 1995 through 1998. He also lived with the defendant from April 2001 through Christmas 2001. About then, the parties began to disagree about parenting time at Christmastime 2001. The mother then apparently told the defendant that he was not the child’s biological father. Thereafter, the mother and child disappeared for almost two years.
Toward the end of 2003, defendant filed a motion to revoke the acknowledgment of paternity. The child’s mother opposed the motion, as well as other motions filed by defendant relating to child support. During these proceedings, defendant took the child who was now 13. Rather than taking the child shopping, as had been intended, the defendant arranged for unauthorized DNA testing. The test results revealed that defendant isn’t the child’s biological father.
In possession of this new fact, the defendant re-filed his motion to revoke the acknowledgment and, concurrently, filed motions to vacate the existing child support orders.
The trial court denied defendant’s motion to revoke, holding that defendant had not shown, by clear and convincing evidence, that the “equities of the case” required setting aside the acknowledgment.
The T/C based its decision on the long history of involvement between the child and Mr. Smith and also Smith’s extended family, the length of time the child had resided with Smith and his family, the emotional and psychological problems of the child (which may or may not have arisen as a result of learning that Smith was not his father and was attempting to back out of the father-son relationship). The trial judge praised Mr. Smith as a member of the US military—a hero and a father figure for the child, and acknowledged that “the fact is, it’s 14 years later and we have a young man that’s had a relationship with you, Mr. Smith, for those years and who — who prob — well has been harmed by the knowledge that that relationship no longer exists.” Therefore, the T/C held that Smith had not established by clear and convincing evidence that the equities of the case supported a revocation.
An acknowledgment of parentage “is a stipulation by a woman of a man’s paternity under the Acknowledgment of Parentage Act.” A man and a woman may enter into such a stipulation, without going to court to obtain an order of parentage if the child is born out of wedlock. Once the acknowledgment is executed, the man is considered to be the child’s natural father and the child has the same rights as any other child born within wedlock. An acknowledgment of parentage establishes the child’s paternity and may be used to seek child support, child custody, and parenting time.
Revocation of an acknowledgment of parentage is governed by MCL 722.1011. The man or woman who signed the acknowledgment, the child who is the subject of it, or the prosecuting attorney may file a claim for revocation. This revocation may be filed in an existing case in which an order for child support, custody, or parenting time has been entered. The motion must be supported by the claimant’s affidavit. The following facts are grounds for revocation:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(d) Misrepresentation or misconduct
(e) Duress in signing the acknowledgment.
The decision in this case revolved around sub-section 3, which states:
(3) lf the court finds that the affidavit is sufficient, the court may order blood or genetic tests at the expense of the claimant, or may take other action the court considers appropriate. The party filing the claim for revocation has the burden of proving, by clear and convincing evidence, that the man is not the father and that, considering the equities of the case, revocation of the acknowledgment is proper.
Johnson v Smith presents a roadmap for a revocation motion. A party seeking to revoke an acknowledgment of parentage has to do the following:
(1) present an affidavit that states a mistake of fact, newly discovered evidence, fraud, misrepresentation, or duress that are sufficient to support the conduct of genetic testing.
(2) establish by clear and convincing evidence that revocation is proper under the “equities of the case.”
Despite the fact that DNA testing provides an accurate means of establishing biological paternity, just showing that the alleged father is not the biological father isn’t sufficient to support a claim for revocation. In addition, the alleged father must prove that it’s equitable to revoke. This is because the Acknowledgment of Parentage Act takes both biology and equity into consideration. See Killingbeck v Killingbeck, 269 Mich App 132 (2005) and Sinicropi v Mazurek, 273 Mich App 149 (2006).
Here, the COA was clear about both the process and its concept of how and why the equities of the case should be determined:
"[This case] teaches us that in considering the equities of the case in this context, that the relationship between the child and parent, the child’s age and circumstances, are all relevant. Here, defendant believed the child to be his from birth and agreed to name the child after himself and the paternal grandfather. He signed the acknowledgment of parentage and paid child support. Defendant participated in parenting time with the child, and raised the child without plaintiff’s support for extensive periods of time between 1995 and 2001. Defendant was an active father who did not shirk his parental role until it was established by genetic testing that the child was not his biological child. By that time, the child was already 13 years old.
"As noted in Sinicropi, supra at 161 n 4, the child’s “well-being” must also be considered. Defendant raised the child for extensive periods of time, and was actively involved in the child’s schooling during those periods. It is true that the child had suffered emotional and psychological problems before the dispute over his paternity arose. However, since the time that defendant forced the child to undergo genetic testing, the child has attempted to commit suicide and began questioning his sexual identity. The child has experienced these new troubles without the assistance of his legal father, the man who raised him, who admits that he no longer wanted a relationship with the child. Accordingly, we find that the trial court properly determined, based on the evidence and a clear and convincing standard, that revocation of the acknowledgment of parentage was not supported by the equities of this case."
You may read Johnson v Smith here.
UPDATE: See Post about June 12, 2012 enactment of the Revocation of Parentage Act.
For more information on parentage issues, see Jeanne Hannah's website
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