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.

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Technorati tags: child support, paternity , disestablishment of parentage