A question was posed today whether a man and woman commit perjury by signing an affidavit in which each knowingly and falsely states that the man is the child's "natural father," knowing that he is not the biological father. The answer to the question is not likely to be found in a hair-splitting analysis of what a "natural father" is.
Can you say "perjury?" One analysis might take into consideration the fact that in 2004 a woman who filed a false affidavit was successfully prosecuted for perjury for making a false statement in a domestic relations case. The case is State v Lively, 470 Mich 248 (2004). The Court's analysis of the perjury statute bears a reading.
Don't let the "trees" block your view of the "forest." What's the big picture? I would not end my analysis with the perjury issue, even if I concluded that there's little likelihood that either party will be prosecuted for this felony and/or that the statute of limitations might run prior to the time that anyone ends this cohabitation relationship or before the real biological father with an ax to grind raises the perjury issue. That is because there are far larger issues at stake here.
What does the client stand to gain by signing the Acknowledgment? What are the specific protections? What are the specific (and real) detriments? Because the legal interests of the biological mother and the man willing to acknowledge as a father are so very diverse, the real problem is to figure out whether the client is well-served by signing a false Acknowledgment of Parentage and whether he or she has any further benefit or detriment arising from this action. [Here's the State's Form DCH-0682w].
What's the "Up Side"? What benefits are there for either party? It's really the case law, not the statute that has defined what the "'up side" or "down side" is for each party, since each case is fact-specific. These issues need careful analysis.
What's the "Down Side?" More particularly, what detriment would the mother have? What detriment would the male have? These issues specifically need careful analysis.
Is there a conflict of interest? Another valuable area of inquiry relates to which party the lawyer represents. I submit that because the interests of each party are so very diverse, it is a conflict of interest for one attorney to give an answer to questions posed by the couple. I personally, would not want to be caught in the middle of this ethical issue. I'd represent one of them or neither of them. If the lawyer tried to represent them both, he/she will likely commit legal malpractice as to one and when/if the relationship ends, the consulting lawyer will end up with a conflict of interest warranting disqualification if asked to represent one of the parties.
Will a Court allow a revocation of an Acknowledgment (or Affidavit) of Parentage? Here are some important questions that both the mother and the acknowledging father may want answered.
- Does a false affidavit hold water? Will it stand up in court?
- Can a man later revoke the acknowledgment of parentage to avoid child support?
- Can a man protect his right to joint custody or significant parenting time with this child if the relationship sours?
The case law dealing with revocation of an acknowledgment of parentage -- down the road when the parties may separate and one of them might want to invalidate the acknowledgment -- requires a careful analysis of the specific facts of the case since these care are so terribly fact-dependent, and also an analysis of the specific benefits and detriments to your client. A recent post on Updates in Michigan Family Law will help you analyze where your client stands to benefit (or not) on this issue.
The mother is always going to be the biological mother with proof that protects her parental rights. Here are some important questions from the perspective of both parents, each of whom would be looking for answers at the opposite end of the spectrum:
- Can the signing of a false affidavit protect a man's right to continue to parent if the relationship sours?
- Can the signing of a false affidavit allow him to escape from child support later if the relationship sours?
- Could Mom later reconcile with the biological father?
- What would she do then?
- Wouldn't she likely want to end the parent-child relationship with the non-biological father?
What are the acknowledged father's benefits in falsely acknowledging parentage?
- He gets a parent-child relationship so long as the parties are getting along.
- He gets the support obligation that goes along with parentage, fine while the relationship is good, a burden, perhaps, when it sours
Detriments to the acknowledged father in falsely acknowledging parentage:
Child Support Issues. If the relationship breaks up, he may decide that he wants to avoid child support. He might be able to revoke the acknowledgment of parentage, but recent cases have indicated that the best interests of the child are going to be considered. If his parent-child relationship is of long standing, a court is far more unlikely to allow him to revoke the acknowledgment. See a post on Updates in Michigan law discussing Johnson v Smith, Docket No 270906, decided by the Michigan Court of Appeals on November 20, 2007 [Leave to appeal pending]. In Johnson, the court refused to permit the acknowledged father to revoke the acknowledgment. See prior Post in Updates in Michigan Family Law for detailed discussion.
Child custody | parenting time issues. There are some custody and parenting time issues where the acknowledged father is at a disadvantage. These are discussed below from the female's point of view, which is directly adverse to the male's.
What are the acknowledged mother's benefits in falsely acknowledging parentage?
Child Custody | Parenting Issues. The Acknowledgment in and of itself, doesn't save the acknowledged father from Mom's sole custody under the statute and the 100-mile rule. Sure, he can contest custody, but Mom is going to get a leg up by having, initially, presumed custody. Thus, the male has no real protection of the "parental rights" he's assumed because under the Acknowledgment of Parentage Act, the mother has custody of the child unless it's otherwise determined by a court or the parties agree in writing. If the mother decided that she was through with the relationship, she could move far away and Michigan's 100-Mile Rule, MCL 722.31, would not apply to protect the man's parenting time, particularly if she moves out of state -- unless, of course, he used the UCCJEA to force the mother to bring the child back to the child's Home State. (That is not an inexpensive proposition.) He'd need a writing between the parties to protect his custody and parenting time rights from these possibilities.
Other benefits to the mother?
- She gets a parent-child custody and support relationship so long as the parties are getting along.
- She gets the support obligation that goes along with parentage and subsequent child support if they split.
- Revocation of the acknowledgment is not a cakewalk. She's likely to win on support because if the facts are right, the trial court will deny the male's petition to revoke the Acknowledgment.
Conclusion: Who has the greater benefit if the parties falsely allege parentage?
Each case is decided on its own particular facts, and normally, in these cases, the male will have a heavy burden of proof. As with most family law cases, those involving acknowledgments of parentage are completely fact-driven. The biological mother is always going to have her parental rights protected. But a man who assumes parentage by signing an acknowledgment may not always be so fortunate.
What about if the mother is married to another man during conception or birth?
That brings us to the line of cases involving parties who conceived the child while the mother was married to another man, and who later signed an acknowledgment of parentage, false because the mother had to allege falsely that she was unmarried from conception to birth. [See the acknowledgment/affidavit form] If the mother returns to her husband, the biological father is out of luck.
In Aichele v Hodge, 259 Mich App 146 (2003) [Interesting dissenting Opinion here] the mother and her husband filed a successful motion to dismiss the custody action brought by the Plaintiff biological father. The Plaintiff there relied upon the Affidavit of Parentage to give him standing to sue for custody and parenting time. The Court of Appeals disagreed, stating that an affidavit of parentage can never be properly executed unless the child is born out of wedlock and that because the mother falsely swore that she was unmarried from conception to birth, the affidavit was invalid. The Aichele case also provides significant discussion on the interpretation of and distinction between "father" and "natural father."
What are the problems for the mother if she signs this false affidavit?
Take a look at Killlingbeck v Killingbeck, 269 Mich App 132 (2005) where the mother and boyfriend signed an Affidavit of Parentage and then married briefly. When mother filed for a divorce, she and her former boyfriend arranged for DNA testing and discovered that it was his child. But Killingbeck had actively co-parented for 4 years. The COA considered "the equities of the case" which inevitably mean examining the best interests of the minor child, and refused to allow the mother to revoke the acknowledgment. the COA also reversed a trial court order giving parenting time to the biological father.
Or see Sinicropi v Mazurek, 273 Mich App 149 (2006). There two men competed for fatherhood and the mother was unmarried from conception to birth. Powers, with whom the mother executed an Affidavit of Parentage, was not the biological father. The mother and Powers lived together from 1999 to 2001. Then she lived with Mazurek, who was the child's biological father. The three parties fought in court over which alleged father would become the legal father. Eventually, the COA remanded to the trial court to "revisit the issues of revocation of the acknowledgment of parentage," which means that the court would consider the equities of the case and whether the child's relationship with either Powers was going to make it inequitable to revoke the affidavit of parentage.
See also Whiting v. Taylor-Bolt, Docket No. 261495 (Mich.App. 11/21/2006)
Trust me on this. The significant issue here is not risk of perjury because of the false affidavit. [But what competent attorney would tell a client to execute a false sworn statement?] It's what the parties stand to gain or lose afterwards if their relationship terminates. The danger for each party is that nothing is cut-and-dried. The specific facts of each case are going to compel the result. It's rare that the facts are so cut-and-dried that a lawyer can predict with any degree of certainty what a court will do.
So my question to those folks who want to know if they can be prosecuted for perjury for falsely testifying that he's the biological father is this: If they love each other and plan permanency with their child to be born in the near future, why don't they just get married? If the child is born during their marriage the rights of both parties to custody and parenting time will be protected. If the mother is married to another man, the biological father should know that he cannot protect his rights unless the mother divorces her husband and the husband agrees in those proceedings that this is not a child of the marriage.NOTE: This blog post was written in 2008. The enactment of Public Act 159 of 2012 should be considered, as the this issue may be impacted by the specific terms of that Act. Specifically, an action to establish paternity by the biological father will be time-barred unless brought within specific time limits. For details, see Sweeping New Changes to Parentage Laws in Michigan here.
You'll find many earlier articles dealing with parentage law on this Blog at the end of this Blog post.
Additional Parentage | Paternity articles may be found on my website here.
Do you need help with a paternity case? Find a Michigan Family Lawyer near you.