UPDATES IN MICHIGAN FAMILY LAW

Significant increase in unwed births reported by CDC

An alarming statistic was revealed on May 15, 2009. According to the Center for Disease Control, about 40% of all babies born alive in the United States are born to unmarried mothers.

The CDC report highlights are these:

• Childbearing by unmarried women has resumed a steep climb since 2002.
• Births to unmarried women totaled 1,714,643 in 2007, 26% more than in 2002. Nearly 4 in 10 U.S. births were to unmarried women in 2007.
• Birth rates have risen considerably for unmarried women in their twenties and over, while declining or changing little for unmarried teenagers.
• Non-marital birth rates are highest for Hispanic women followed by black women. Rates for non-Hispanic white and Asian or Pacific Islander women are much lower.
• Most births to teenagers (86% in 2007) are non-marital, but 60% of births to women 20–24 and nearly one-third of births to women 25–29 were non-marital in 2007.
• Teenagers accounted for just 23% of non-marital births in 2007, down steeply from 50% in 1970. [This is significant because it means that the initiatives to reduce teen pregnancy are really working!]
  

The CDC report may be read or downloaded here. http://tinyurl.com/ovgd4x

Research has shown strong links between illegitimacy and poor outcomes for children. In other words, these babies are at far greater risk than infants born to married parents for living in poverty, being victims of abuse or neglect, experiencing problems in school and with juvenile delinquency or living in foster care. 

The high incidence of non-marital births is something that I see every day in my practice. These cases present as neglect or abuse cases, as custody or parenting time disputes, as child support cases or as parental kidnapping cases. Sometimes my clients are mothers; sometimes the father is my client. Often the Acknowledgment of Parentage Act will have an impact initially because that Act gives the mother initial custody. In other words, if the parents are married, each parent has a right to physical custody of the children. If the parents are unmarried, the mother may remove the child from the home shared (or not) with the father. She has the freedom to travel and may leave the state of Michigan before the father can protect his parental rights.

Sometimes (usually) the Uniform Child Custody Jurisdiction and Enforcement Act can help the left behind parent protect his or her rights. But sometimes the particular facts of a case do not compel that result.

When the parents have lived together, they have sometimes accumulated property. If that is real estate and they've been poorly advised and taken titled as joint tenants with rights of survivorship additional and significant legal problems arise. If one of the parties has moved into the other's home and made financial contributions, unless there is a marriage to dissolve, the non-owner usually receives no reimbursement for his or her hard-earned dollars. If the relationship has been a long-term one, the financial advantages to the titled party are significant and the financial detriment to the non-titled party can be crushing.

While the economic slowdown has significantly reduced the ability of people to seek out legal representation, the need for the help of a lawyer to protect a parties' rights to custody, parental relationships (parenting time), and to protect property rights that are often significant should warrant those who are unmarried to seek out a skilled family lawyer to help them protect their rights.

Can a dad be ordered to pay support if he's been deprived of a relationship?

A reader asks if a biological father who has been deprived of establishing a parent-child relationship by the mother -- who is hiding behind her marriage to another man -- might later have a child support liability. The answer to the question is yes, there is a risk that this might occur.

Imagine being deprived of a father-child relationship with a child you know is yours. Imagine that many years go by. And then imagine that the mother divorces her husband, who then refuses to support the child and disavows paternity.

Parentage - When Mom is married to another man

As many of my readers know, I have written extensively on the topic of parentage issues arising in cases where the mother is married to another man. If a child is conceived and/or born while the  mother is married, her husband is presumed by Michigan law to be the natural and legal child of the child. If the mother chooses to keep the biological father out of the child's life, he has no legal right to pursue or exercise any parental rights. Frequently, biological fathers are denied the right to see their children. Often this occurs even when the father has already formed a bond with that child.

Posthumous reproduction and today’s military

On the heels of yesterday's serendipitous discovery of Professor Charles Kindrefan, Jr.'s article about assisted reproduction comes this article written by a JAG lawyer, titled "To Be Continued: A Look at Posthumous Reproduction As It Relates to Today’s Military," by Major Maria Doucettperry of the JAG Corps. [Judge Advocate, U.S. Army. Presently assigned as Deputy Chief, Military and Civil Law Division, Office of the Judge Advocate, U.S. Army Europe and Seventh Army]

Major Doucettperry writes: "Permitting families of recently deceased Soldiers to collect semen from the Soldier for the purpose of artificial insemination implicates many moral, ethical, and legal issues. This practice should therefore be limited to cases where the servicemember has voluntarily surrendered a specimen prior to death and has clearly indicated the intended disposition of such specimen in the event of his death or incapacity.

Additionally, military benefit eligibility criteria should be redefined to encompass any children conceived from this process within a specified period from the servicemember’s death. The following Sergeant (SGT) Smith and First Lieutenant (1LT) Perry hypotheticals demonstrate the perplexities raised by unanswered moral and legal questions surrounding sperm cryopreservation as they may be presented in the military arena."

Major Doucettperry cites two specific and factually different hypotheticals. The implications - social, moral, ethical, and economic - are substantial.

Assisted reproduction - social and legal ramifications

I read a statistic today in Steve Worrall's blog: 47% of children born in Georgia are born to unmarried women. And "on my way to the Forum," I happened upon an interesting work in progress, by Charles Kindregan, Jr., Distinguished Professor of Law, Suffolk University Law School, Boston.

Professor Kindregan's article involves children conceived by other means than sexual intercourse. He explores newer and evolving forms of parenthood, influenced both by changes in society and by new forms of conception being pioneered by medical and reproductive science.

Kindregan explores how assisted reproduction has influenced our understanding both of the modern family and the parent-child relationship and the legal ramifications.

You can download and read The New Parentage: Of Families, Sex and Asexual Choices here.

Rights of biological father | Biology isn't everything

What are the rights of a biological father if, after birth of his child, the mother has signed an  acknowledgment of parentage with another man? Michigan's court of appeals has answered this question after two trips to the court of appeals. These seem to be the facts of the case before the COA in Sinicropi v Mazurek, [Docket No. 281726 decided July 1, 2008] for publication:

1999: Woman meets Man. They have a  relationship. They split. She has a relationship with Man No. 2. They  split, and she goes back to Man No. 1. She has a baby and they sign an  acknowledgment of parentage making Man No. 1 the baby's "legal dad."

2001. Woman and Man No. 1 split again. Man No. 1 files a custody action and  Woman and Man No. 1 consent to an order of joint legal and joint physical custody.

2004. Woman moves to another city. Man No. 1 sues for custody and gets full custody. Woman doesn't like this. Hmmm. Perhaps he's not the "real" Dad. So Man No. 2, woman and child all take DNA tests. Voila! Man No. 2 is the  biological father. That must mean Mom wins -- that she can get rid of Man  No. 1 (now Legal Dad), because she and Biological Dad can get the court to revoke the acknowledgment of parentage in order to cut Man No. 1 (Legal  Dad) out of the picture! The child is now 5 years of age and the only  "father" he has ever known is the Legal Dad.

Will Mother's plan work? Remember that the facts of each family law case are unique. Thus we are not surprised when the answer, according to Michigan's Court of  Appeals is: "It depends."

Should a mother and her boyfriend falsely claim he's the father?

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, 470 248 (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].
 

Revocation of Acknowledgment of Parentage | A roadmap

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.

Nelly Bar the Door: Part II

On September 13, 2007, the Michigan COA reversed the trial court's decision that a former husband should be ordered to pay child support for a child who was born prior to the parties' marriage, a child that he had believed to be his biological child and whom he had held out to the child and the public as his own.

After the parties separated, a 2-year period elapsed during which Alex Brook did not see this child or the one born during the parties' marriage. When Pal Brook filed for divorce, Alex questioned the parentage of the older child.

Alex filed a motion for summary disposition under MCR 2.316(C)(10). The parties stipulated to these facts: (a) the child had been born prior to the marriage and there was no affidavit or Acknowledgment of Parentage filed; (b) DNA testing proved that Alex was not the child's father; and (c) Alex held himself out to the child and the public as the child's father.

The trial court, according to the applicable standard for summary disposition motions, accepted those stipulated facts as true and ruled as a matter of law that Alex was estopped to deny his parentage of the child. Alex was ordered to pay child support. Alex appealed of right.

The COA looked at several avenues of establishing parentage and held that they did not apply to this case. Then the court considered whether Atkinson v Atkinson could be applied to this case to establish equitable parentage. This equitable theory was rejected by the COA.

Similarly, the COA held that Alex was not equitably estopped from denying parentage. Since Alex believed that the child was his, he never had any reason to affirmatively represent that he would raise the child as his own. The COA held that the T/C erred in applying the doctrine of equitable estoppel and reversed.

As I've earlier said on the issue of parentage and disestablishment of parentage: "Nelly Bar the Door!"

You may read Brooks v Brooks here. Technorati tags: child support, paternity , disestablishment of parentage

What Last Name Should Child Have? Biological Father's or Mother's Husband's?

Professor Barbara Glesner Fines has reported on the Family Law Prof Blog that the Supreme Court of South Dakota, in a 3-2 ruling, has held that the best interests of the child are paramount when deciding what the last name of the child should be.

The child here was conceived of an affair while the mother was married to another man and was born after the mother's reconciliation with the husband. Her husband's name is on the birth certificate and the child bears his last name. After the child's birth, DNA testing showed that the child was the biological child of the third party and a visitation schedule was established. Later, bio-dad filed a motion to change the child's last name to his name.

Obviously, unless the mother had failed to raise a standing issue, this case would never have proceeded to this point in Michigan since Michigan law provides that a bio-dad has no standing to sue to establish paternity of a child conceived and/or born during the mother's marriage to another man.

The South Dakota Court engaged in a best interest analysis, and it's worth your time to review this as issues related to the child's last name can arise in other contexts, as shown by the discussion this week on the State Bar of Michigan Family Law Listserv.

You can read the South Dakota case, In the Matter of Name Change of LMG here.

Prof. Barbara Glesner Fines summary of the case and analysis can be read on the Family Law Prof Blog here.

Paternity law | Recent developments

Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 has compiled a useful digest of recent law review articles dealing with the topic of paternity:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

Thanks to Diana Skaggs, blogger, Divorce Law Journal for bringing this to our attention.

Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 has compiled a useful digest of recent law review articles dealing with the topic of paternity:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

Thanks to Diana Skaggs, blogger, Divorce Law Journal for bringing this to our attention.

Revocation of Acknowlegment of Paternity - what's a "mistake of fact?"

In People v Nugent, Docket No. 267069 For Publication, decided July 3, 2007, the Bay County prosecutor's office sought an order revoking an acknowledgment of parentage.

In this case, Nugent signed an acknowledgment of parentage claiming to be the biological father of a child born to Amy Dyjak despite the fact that he'd had a vasectomy a few years earlier. As they say, "truth will out." Eventually, it was established that Nugent's 14-year-old son was the biological father of the infant. Dyjak pled guilty to 2nd degree CSC. Her voluntary plea agreement required her to relinquish her parental rights to the child.

When Nugent refused to cooperate and revoke the acknowledgment of parentage, the PA--apparently on behalf of Alex--filed a petition to revoke the petition. Nugent contested the action because he wanted to remain the legal father of the child. Nugent's theory was that because he intended to be the child's father when he signed the acknowledgment and because he intended to remain the father after he learned that he was not biologically related, there was no mistake of fact that could be the grounds for revocation. The trial court denied the PA's petition and this appeal followed. There are two quite interesting things to learn from this case.

Order allowing duped dad reimbursement for $55,000 in child support reversed

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

Who's My Daddy?

One of the more bizarre paternity cases is playing out in Missouri. ABC News reports that identical twin brothers Raymon and Richard Miller, residents of Missouri, unknowingly had sex with the same woman on the same day. She became pregnant, had a child, and named Raymon as the father. When Raymon named is brother as a potential father, thus began a contested paternity case.  Not surprising since identical twins are essentially clones, the DNA tests showed a 99.9% probability that each is the father. The child, a girl, is 3 years old.

No mention, of course, as to what’s best for the child. It’s all about the money, and Raymon, a classy guy, says he’ll continue to fight since the conflicting DNA results don’t prove his paternity by a preponderance of the evidence. "I want to go to the Supreme Court," Raymon told ABC News. "If they can't prove it's me then they should throw it out of court." And as for the child support, he said, "The state should eat it."

Raymon has already lost in a state appellate court. The trial judge had his own ideas about who should pay the child support. Judge Gaensslen told ABC News: "Split it down the middle. They both played, so they should both pay."

Neither man is seeking parenting time. Too much time spent hanging onto their wallets, it seems.

Technorati tags: Raymon Miller, Richard Miller, paternity case,

Another sad result for a biological father

Last week saw yet another sad decision for a biological fathers of a child born to a mother who was married to another man at the time of birth and conception. In Voris v DHS, a biological father sought to intervene in a neglect case to assert his parental rights to his child conceived and born during the mother’s marriage. The Court ruled that the biological father lacked standing to intervene because the child had a legal father. Few States allow children to have more than one legal father, and  prior Michigan case law has so held.

After the parental rights of the mother and her husband were terminated, the husband filed for divorce in another county. The judgment of divorce stated clearly that Voris was the legal and biological father of the child. Voris filed a paternity action and the DHS petitioned for dismissal, again claiming that Voris lacked standing. The family court judge disagreed. The DHS appealed.

Paternity & Custody Law | Dannielynn Hope Marshall Stern

I was interviewed on Michigan Talk Radio yesterday about the case involving the infant of Anna Nicole Smith. By yesterday, it had been established that Larry Birkhead is the biological father of Dannielynn. One question involved whether Howard K. Stern could or would be awarded any visitation. In response, I stated that it is my belief that Stern is what family lawyers call "a legal stranger" to this child and that he has no right to request or to be awarded any visitation. Any time that he gets to spend with Dannielynn will be by the grace of Birkhead.

The same is not necessarily true of Anna Nicole's mother, Virgie Arthur who is allegedly seeking guardianship of Dannielynn. While I think a guardianship in her favor has about the same chance as a snowball in Hell since she lacks "standing" (a legal right) to request a guardianship given that the child has a legal biological father, grandparent visitation is a potential. This could only occur, however, upon a finding of unfitness on the part of Birkhead and a finding of fitness on the part of Arthur.

DNA testing through the male line

Every now and then I'll read about a mother who is trying to establish paternity so that she can obtain social security benefits for her child because the biological father died before parentage could be determined.
Recent developments in DNA testing will now make such paternity testing more possible -- provided, of course, that the mother can get someone from the male bloodline of the biological father to cooperate with DNA testing.

A story on January 6, 2007 in the Boston Globe, reported that a 54-year-old African-American female lawyer, adopted at the age of 5, was finally able to establish the identity of her own father. In this case, the child, Carla Latty, simply wanted to know her heritage. The male relatives weren't particularly cooperative because the possible father was a Roman Catholic priest in the church where Ms. Latty's mother played the organ. Male relatives were spread through the country, with one found in British Columbia who was eventually establihsed as the full brother of Ms. Latty. 

An earlier Boston Globe article was successful in soliciting some assistance from one male member of the prist's father and financing for the DNA testing from another priest.

The story is long and complicated. It will give you some idea of the kinds of hoops that may need to be jumped through in such a case. You can read it here.

Technorati Tags: paternity, DNA testing

To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Parentage Issues: Here We Go Again!

Here we go again. The Michigan court of appeals, in Whiting v Bolt, Docket No. 261495 (decided November 21, 2006 unpublished), reversed the trial court and held that because the biological mother had executed an acknowledgment of parentage with her ex-husband, with whom she was living at the time the child was born, that the acknowledgment trumps DNA and that the man alleging to be the child’s biological father lacks standing to sue for an establishment of parentage, custody, and/or parenting time. The bio Dad had asked the trial court to revoke the acknowledgement of parentage and DNA testing established that the plaintiff was the biological parent.

Here’s the “killer language” from the COA’s decision:

Why We Need a Federal Putative Father Registry

I had a phone call from Lisa Church, a reporter for the Lansing State Journal last week. She called to discuss what rights a biological father has to block an adoption of his child. She was calling, really, for comment about a Michigan father whose parental rights were terminated in favor of adoptive parents. In that case, the father says that the mother deceived him about her pregnancy and then, when he learned about the baby, refused to accept any money for support.

He was unable to establish a father-child relationship because he had no access to the baby. Thus, a court terminated his parental rights because under Michigan law, he is a "do-nothing" parent. Lisa wanted to know if there was anything a father could do to protect his rights so that he could raise his child even if the mother did not want to do so.

Nelly, Bar the Door!

Today (August 2, 2006), a lawyer asked on the Family Law Listserv a question that may be of substantial interest to some Michigan parents and lawyers in light of the Michigan supreme court's decision three days ago in Barnes v Jeudevine. He asked:

"I filed a motion which the court denied in a paternity action several months ago.  Last week the Supremes issued an opinion in a case that gives me a basis for filing a motion for reconsideration but it would obviously be beyond the deadline set by the court rules.  Does anyone know of a case that says such a motion is appropriate even if after the deadline when an appellate court issues a new decision?  Thanks in advance."

Acknowledgments of Parentage: Can They Protect Parent-Child Relationships?

Someone opined today on Michigan's Family Law Section Listserv that:

"The next step that I foresee is that somebody is going to try to stick Ms. Jeudevine's ex-spouse, whom I gather is a Mr. James V. Charles, with a child support obligation.  He would then, I suspect, move to amend the J/D by adding a Serafin order, either in the J/D itself or in a separate order,  plus an amendment of the J/D language to conform to the Supreme Court's requirements.  Then Mr. Barnes could refile and get the proper result."

I see a major problem with this approach:

Barnes v Jeudevine: How to Deprive a Child of a Father

       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.

"Roe v Wade for Men" Dismissed by Sixth Circuit

On July 17, 2006, the Sixth Circuit Court of Appeals dismissed Dubay v Wells et al., stating:

“According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case.”

The lawsuit, often described as "Roe v Wade for Men," was filed by Matthew Dubay in the United States District Court at Bay City, Michigan. Dubay claimed that Michigan's paternity law is unconstitutional because the father is compelled to pay child support even if he did not want the child to be born.

Can a putative father protect his parental rights by filing a Notice of Intent?

A lawyer on the Family Law Listserv asked today about whether a putative father can protect his parental rights by filing a “notice of intent to claim paternity.” In responding to this question, I note the major pitfalls a putative father may have in protecting his parental rights.

Section 33 of the Michigan Adoption Code  [MCL 710.33] provides for the filing of a Notice of intent to claim paternity and operates somewhat like a central registry.  In pertinent part:

How can a man protect his paternity rights if the mother wants to place the child for adoption?

Today, the New York Times published a news story about a father living in Arizona whose parental rights were terminated by a Florida court so that the child born to his former fiance could be adopted. Jeremiah Clayton Jones learned that about the pregnancy just three weeks prior to the child’s birth when an adoption agency telephoned him to inquire whether he would consent to an adoption. He decided to raise the child that his former girlfriend did not wish to keep. He hired a lawyer and filed a paternity case in Florida where the mother lived on the day before the child was born. See Unwed Fathers Fight for Babies Placed for Adoption by Mothers, NY Times March 19, 2006.

Another Look at Paternity Issues: This time Boyfriend has Standing to Sue

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.

What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?

A Michigan attorney recently opined that a biological mother has the right to do anything she wants to do with a child regardless of a biological father’s wishes. While I certainly respect this attorney's right to express his opinion on moral issues, I strongly disagree with the opinions he has expressed on legal issues.

It is true that the law provides that a mother can terminate her pregnancy without the father’s consent. It is not true that a mother can give a child up for adoption without the biological father's consent and/or that she can avoid the biological father exercising any rights unless she chooses to keep the child. A father’s parental rights are substantial and are protected under the Due Process clauses of both the Michigan and the United States Constitutions.

Now I'm up here on my "constitutional highhorse" and my goal is to define what legal rights a father has to a child if he is not married to the mother. This discussion does not include a situation where the mother is married to another man during either conception or birth. That situation raises even more complicated issues that were discussed on this blog in April 2005. [You can see Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172 for the state of Michigan law.]

The issues involving an unmarried mother and an unmarried father are many and are complicated. But Michigan’s Adoption Code clearly requires notice and hearing must be provided to a putative father before his parental rights may be terminated to permit adoption of a child. If his consent to an adoption is not obtained and where a mother refuses to provide the identity of the biological father to a court, an adoption may later be subject to challenge provided that the father is subsequently able to learn that the child has been given up for adoption without his knowledge and consent.

Most adoptive parents would prefer to avoid the uncertainty of a later challenge to an adoption by making sure that a biological father’s identity is known and that his consent is given or that his parental rights are otherwise legally terminated.

How a Biological Father Can Protect his Parent-Child Relationship?

See Jeanne Hannah's website for more information about how a biological father can protect his parent-child relationship.

The 100-Mile Rule, the Acknowledgment of Parentage Act, and the Parental Kidnapping Statute: Are Unmarried Fathers at a Disadvantage?

Many of you know that I've always had a special interest in paternity or parentage issues. Research shows that children need a good relationship with both parents in order to grow up as healthy, productive adults. Unfortunately, that doesn't always happen. Yes, high-conflict issues sometimes occur in divorces. But I most frequently see disruption of normal parent-child relationships within the context of paternity / parentage cases.

There are some ways in which the statutes governing parentage and custody issues act to disadvantage unmarried fathers who want to protect and foster their parent-child relationships.

The 100-Mile Rule

Section 11 of the Child Custody Act, MCL 722.31, called "The 100-Mile Rule, deals with the legal residence of a child. Subsection (1) states that a child has a legal residence with each parent and it says that a parent cannot move a child’s legal residence more than 100 miles from the child’s legal residence at the time a custody action is filed.

There are several instances in which the 100-mile rule does not apply:

Subsection (2) states: This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.

Subsection (3) states: This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart.

How Unmarried Dads are at a Disadvantage: The Acknowledgment of Parentage Act

What about cases where the parents are not married? If a father has not signed an acknowledgment of parentage, he has no legal right to custody until he’s been adjudicated as the father. Therefore, if Mom wants to do so, she can move anywhere – across the country even – disrupting the father-child relationship. To learn more about how a biological father can protect himself from this type of interference with the father-child relationship, see Jeanne Hannah's website.

What are the Rights of a Biological Father if the Mother is Married to Another Man?

This question is answered differently under Michigan law than it is under the laws of States that have enacted the Uniform Parentage Act (UPA, and States that have some judicially created exception like the ones in the UPA. In Michigan the Paternity Act and decisions of the court of Appeals and the Michigan Supreme Court deny standing to all biological fathers (not husbands) when a child is conceived or born during a marriage.

Consider the most recent Michigan case, decided February 16, 2005 (Numerick v Krull). The biological father's rights were effectively destroyed when Mom wed someone else after she and dad separated but before the child was born. If this is a sham marriage used to cut off Dad's rights, what happens when or if Mom divorces this husband? In this day and age people often move and lose touch. Bio Dad may never know if Mom moves to a state where she can divorce Dad and he can disestablish paternity. Bio Dad may never have the opportunity to parent or co-parent his child.

While it's true that these cases result from messy lives, are family lawyers supposed to turn away and ignore what might be in the best interests of a child to avoid getting our hands dirty? I don't think so.

What the UPA does with respect to children born or conceived during a marriage is really no different from the analysis we do under the Adoption Code where efforts are made to terminate a dad's parental rights so the child may be adopted. There we look at the relationship of the father to the child. Has the dad formed a substantial parent-child relationship with the child and has he provided regular and substantial support for the child?

The importance of allowing biological fathers to have standing arises from recent efforts in Michigan to enact legislation that would deal with the issue of "paternity fraud." The proposed legislation would allow a male to disestablish paternity and escape financial responsibility for a child or children born during his marriage to his wife. If we amend the Act in this piecemeal manner, then what happens to the child(ren)? They may be left without financial support and paternal guidance, often from the only father they have known.

If Husband has known that the child was not his for an extended period of time (the UPA sets a limit of 2 years) and he has not challenged it within the 2-year period, then he would not be allowed to deny paternity. It's one thing to deprive a putative father the right to establish his paternity and quite another to then turn around and deny the child the father he/she has been raised by.

Moreover, what is so different about a child having a relationship with her father AND her step-father - with alternate weekends and holidays and summer parenting, in a "normal" family (at least 50% of Michigan children live in such a family) - and a child having the same kind of relationship with a biological father?

Two cases that illustrate how the individual facts should determine whether a putative father should have standing were resolved in California and serve to illustrate what would happen under the UPA - what cannot happen under current Michigan law.