The Michigan Court of Appeal has released a new published opinion in a case involving the Revocation of Paternity Act. Unmarried parents should take note of this case because it shows how a court will handle a case involving custody and parenting time of a child after the parents have both signed an Affidavit of Parentage and they later split--more than three years after the birth. In Kalin v Fleming, ___ Mich App ___ (Michigan Court of Appeal Docket No. 336724, Decided November 21, 2017) (For Publication), the Court of Appeal rejected the mother's argument that she was entitled to a revocation of the Affidavit of Parentage ("AOP").
The parties signed the AOP the day after the child's birth. Fleming later admitted that she did not tell Kalin that there was a possibility that he was not the father. More than three years after the child's birth, these folks split up. Fleming (the mother) refused to allow Kalin (the father) to see the child. She texted Kalin and told him that he wasn't the father. He then filed an action in Family Court seeking custody, parenting time and child support.
The Revocation of Paternity Act, MCL 722.1443 requires that the party seeking to revoke the AOP must file the action within 3 years after the child's birth or within 1 year after the date that the acknowledgment of paternity was signed, whichever is later. The trial court may grant an extension of the three-year deadline only if one of the following defenses is alleged and proven: See MCL 722.1443(12)
(12) A court may extend the time for filing an action or motion under this act. A request for extension shall be supported by an affidavit signed by the person requesting the extension stating facts that the person satisfied all the requirements for filing an action or motion under this act but did not file the action or motion within the time allowed under this act because of 1 of the following:
- (a) Mistake of fact.
- (b) Newly discovered evidence that by due diligence could not have been found earlier.
- (c) Fraud.
- (d) Misrepresentation or misconduct.
- (e) Duress.
The mother filed a motion for an extension of time to set aside the AOP and for revocation. She alleged grounds of misrepresentation and misconduct, and in an amended motion, she claimed that a mistake of fact that was also grounds to set aside the AOP. Specifically, Fleming claimed that the fact that Kalin did not know that he wasn't the father was a mistake of fact.
Kalin opposed Fleming's motion, and filed a motion for summary disposition, asserting that Fleming had not alleged legal grounds for setting aside the AOP. The trial court denied the father's motion and granted Fleming's motion for an extension and her motion to set aside the AOP. The basis for the trial court's ruling was that Kalin signed the acknowledgment of parentage under the mistaken belief that he was the child’s father. According to the trial court, this was a mistake of fact warranting an extension of time for Fleming to seek to revoke paternity.
The Court of Appeal reversed and remanded. The COA held as follows:
"While Kalin’s mistaken belief that he was the child’s father may constitute a
mistake of fact, MCL 722.1443(12) requires that the person requesting the extension show that she did not timely file the action because of one of the five listed exceptions. Fleming did not allege that she was previously unaware of the child’s paternity, nor did she allege that a mistaken belief contributed to her delay. Thus, Fleming’s affidavit did not describe a mistake of fact that prevented her from seeking revocation of the acknowledgment of parentage within the three-year deadline." Slip Op. at page 4.
Kalin v Fleming may be downloaded here.
To review an Affidavit of Parentage, Download 2016 Acknowledgment of Parentage Form.