Legislation inspired by a Livingston County man’s story was signed into law Tuesday by Governor Snyder. Public Act 159 of 2012 gives biological fathers more rights to establish parentage when a child is conceived or born during a marriage. It may remedy some biological father's plights--for example, those of Daniel Quinn of Hartland Township who says he has been prevented him from seeing his daughter for the past four years. The new Act is titled "the Revocation of Paternity Act." It permits a biological father to establish paternity of a child born or conceived during a marriage provided certain specific circumstances exist. In fact, although generally, it only allows paternity to be established if it is done during the first three years of a child's life, there is a savings clause that would permit the filing of an action if it is done within one year of the enactment of the legislation--in other words, not later than June 12, 2013.
On June 12, 2012, the Michigan legislature enacted the Revocation of Parentage Act. MCL 722.1101 to 722.1013. This Act gives certain specified rights to a "presumed father" (the man the mother is married to at the time of conception or birth, an "alleged father" (the man we used to call a putative father--a man who could, by his action, have fathered the child), an "affiliated father" (a man determined by a court to be the father established through a paternity case), and an "acknowledged father" (a man who has affirmatively held himself out as a father by executing an acknowledgment of parentage).
Update: Looking backward 18 months: The Act has proven to need many court of appeal interpretations. A later blog post will summarize some of those court of appeal decisions. I have not published a post on this Act because of pending cases in which I am involved. You may view an interview this author here:
The Revocation of Parentage Age is found here: Download Revocation of Parentage Act
The Acknowledgment of Parentage Act is found here: Download Acknowledgment of Parentage Act
QUINN'S Case: Michigan’s law presumes a husband is the father of his wife’s children. The mother of Quinn’s child was married to another man when she became pregnant. After living with Quinn for a period of time, she decided to reconcile with her husband and took their daughter, who ultimately ended up in the custody of a now-convicted drug dealer. According to police, crimes were committed by the child’s mother’s husband in the girl’s presence. Despite that, Quinn didn’t have the right to tell a judge why he would be a better caretaker for his own daughter.
SALIENT POINTS OF THE REVOCATION OF PATERNITY ACT, PA 159:
TIME REQUIREMENTS: This is an important provision in this Act: A motion under each section must be filed within 3 years after the child’s birth or within 1 year after the date of the order of filiation, whichever is later. In addition, upon request, a court may extend the time for filing an action or motion under this act.
SAVINGS CLAUSE: There is a savings clause for all methods used to establish parentage in a biological father under PA 159. The time limits do not apply to an action filed on or before 1 year after the effective date of this act. [Effective date of PA 159 is June 12, 2012] This means that a biological father who previously has been denied the right in court to establish paternity of a child conceived or born during a marriage may, if he fits within the statutory scheme, now file to establish paternity if he takes prompt action. It also means that a presumed father may disestablish paternity if he fits within the statutory scheme, and he might now file to establish paternity if he files before June 12, 2013.
SECTION 7: SETTING ASIDE AN ACKNOWLEDGMENT OF PARENTAGE.
WHO MAY FILE?
The mother
The acknowledged father (a man who has signed an acknowledgment of parentage)
An alleged father (a man who by his actions could have fathered the child)
A prosecuting attorney may file an action for revocation of an acknowledgment of parentage.
AFFIDAVIT REQUIRED: To set aside or vacate an Acknowledgment of Parentage, there is a requirement that an affidavit signed by the person filing the action be filed. The facts set forth in an affidavit must support the position that an acknowledgment of parentage was signed because of one of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
DNA TESTING REQUIRED. If the court finds that the affidavit described above is sufficient, the court must order blood or tissue typing or DNA identification profiling to prove parentage. The person filing the action has the burden of proving, by clear and convincing evidence, that the acknowledged father is not the father of the child.
SECTION 9: SETTING ASIDE AN ORDER OF FILIATION ENTERED BY DEFAULT
WHO MAY FILE?
The mother
An alleged father, or
The father who was determined to be the father by a default judgment
SECTION 11: FILING AN ACTION TO DETERMINE THAT A PRESUMED FATHER IS NOT A CHILD’S FATHER.
When a child is conceived or born during a marriage, the law presumes that the husband is the father. If a child has a presumed father, under Michigan law, the biological father is not allowed to establish paternity unless a court has determined that the child was born out of wedlock. This requirement has kept many men from having a parent-child relationship with a biological child conceived while a mother who was separated from her husband, but who then reconciled with her husband.
It has also prevented paternity establishment if the mother was pregnant, but then married another man and the child was born during this marriage. Many unfortunate and sad stories have arisen as a result. The Legislature has been struggling to since 2005 with various proposals to remedy some of these problems.
WHO MAY FILE?
THE CHILD'S MOTHER:
FACT PATTERN NO 1: If all of the below are true.
(i) If the mother identifies the alleged father ["putative father" as he was previously known] by name in the complaint or motion commencing the action,
(ii) If the presumed father [the husband or ex-husband], the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.
(iii) If the action is filed within the time limitations.
FACT PATTERN NO 2: If all of the below are true.
(i) The mother identifies the alleged father by name in the complaint or motion commencing the action.
(ii) And either of the following applies:
(a) The husband or ex-husband having the ability to pay support has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the action.
(b) The child is less than 3 years of age and the presumed father lives separately and apart from the child. The requirement that the child is less than 3 years of age at the time an action is filed does not apply to an action filed on or before 1 year after the effective date of this act.
THE PRESUMED FATHER:
If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. The savings clause also applies to this type of situation. See Section 11(2).
AN ALLEGED FATHER:
If a child has a presumed father, an alleged [formerly "putative"] father may file an action to establish his paternity in three difference fact patterns:
FACT PATTERN NO 1:
If all of the following applies:
(i) The alleged father did not know or have reason to know that the mother was married at the time of conception.
(ii) The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.
(iii) The time limits are met.
FACT PATTERN NO 2:
If all of the following applies:
(i) The alleged father did not know or have reason to know that the mother was married at the time of conception.
(ii) Either of the following applies:
(A) There has been two years of failure to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or non-compliance with a support order.
(B) The time limits are met.
FACT PATTERN NO 3:
Both of the following apply:
(i) The mother was not married at the time of conception.
(ii) The time limits are met.
DEPARTMENT OF HUMAN SERVICES:
DHS may file an action under the following situation: If a child has a presumed father and the child is being supported in whole or in part by public assistance, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity
FACT PATTERN NO 1:
The presumed father, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the action.
The time limits are met.
FACT PATTERN NO 2:
The child is less than 3 years of age and the presumed father lives separately and apart from the child.
The time limits are met.
WHERE IS THE ACTION FILED?
(1) In the circuit court for the county in which the mother or the child resides or,
(2) If neither the mother nor the child reside in this state, in the circuit court for the county in which the child was born.
SUMMARY:
In an action filed under this act, the court may do any of the following:
(a) Revoke an acknowledgment of parentage.
(b) Set aside an order of filiation or a paternity order.
(c) Determine that a child was born out of wedlock.
(d) Make a determination of paternity and enter an order of filiation as provided for under section 7 of the paternity act, 1956 PA 205, MCL 722.717.
BEST INTERESTS OF CHILD: A court may refuse to enter an order setting aside a paternity determination or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child.
FACTORS FOR THE COURT TO CONSIDER:
(a) Whether the presumed father is estopped from denying parentage because of his conduct.
(b) The length of time the presumed father was on notice that he might not be the child’s father.
(c) The facts surrounding the presumed father’s discovery that he might not be the child’s father.
(d) The nature of the relationship between the child and the presumed or alleged father.
(e) The age of the child.
(f) The harm that may result to the child.
(g) Other factors that may affect the equities arising from the disruption of the father-child relationship.
(h) Any other factor that the court determines appropriate to consider.
An alleged father may not bring an action under this act if the child is conceived as the result of acts for which the alleged father was convicted of criminal sexual conduct.
This act is ordered to take immediate effect.
COMMENTS:
In Traverse City, a case like Daniel Quinn's, Numerick v Krull, was heard by our local Family Court in May 2003. Bill Numerick had a relationship with a woman who conceived his child, but then married another man. Because the child was born during the marriage, Heather Krull's husband was the "legal father," depriving Daniel of an opportunity to have a parent-child relationship with her. The Court of Appeals agreed with the trial court. The decision was based upon Lord Mansfield's Rule. This rule dates back to a decision written in an English case by Lord Mansfield in 1777 in which it was not lawful for either a husband or wife to testify that another man could possibly be the father--thus making a husband "the legal father" of all children born during a marriage.
Tell me how and why a decision nearly 250 years old can be relevant today when we have DNA evidence to prove parentage and when families have many different forms. Other commentary concerning the old law may be found here: Parentage When Mom is Married to Another Man.
The Revocation of Parentage Act, dealing with paternity and revocation of parentage, signed by the governor on June 14, 2012, Public Act 159 of 2012, with immediate effect and may be read on the Legislature's website here.
See also Public Act 162, enacted on June 12, 2012, which was tied-barred with the above legislation. This Act amends The Paternity Act as follows:
Sec. 10. The court has continuing jurisdiction over proceedings brought under this act to do any of the following:
(a) Increase or decrease the amount fixed by the order of filiation subject to section 7.
(b) Provide for, change, and enforce provisions of the order of filiation relating to the custody or support of or parenting time with the child.
(c) Determine an action to set aside the order of filiation under the revocation of paternity act.
Public Act 160 of 2012 was also tie-barred with the above and was signed by the governor on June 14, 2012. This legislation amends Section 2114 of Public Act 386 of 1998 (MCL 700.2114). This new law deals with paternity; determination of parentage for intestate succession; provide for determination under revocation of paternity act. Public Act 160 of 2012 takes immediate effect. It may be read here on the Legislature's website.
The legislative history can be found here (scroll to the bottom).
UPDATE: To read additional Posts about the Revocation of Parentage Act and to learn about how this new law has changed the process and procedures involved with respect to this issue click here.
There are facts that may make a difference in how your situation turns out. You may call to schedule a telephone consultation.
Posted by: Jeanne M. Hannah | July 08, 2012 at 11:22 AM
i am married and having a baby. I was with someone else for a short time. now the other guys wants me to take a test to see if the baby is his. My husband said no he is the father. i live in michigan. please tell me what is true.
Posted by: stacey | July 06, 2012 at 08:48 PM
Wow, I am so happy to hear this has finally changed. My boyfriend filed in court last year to try and establish paternity for his four children, but the case was thrown out due to the Paternity Act. I have faith that he may be able to establish paternity now under this new law.
We contacted you about our case last year and you were the most helpful of anyone we have talked to. Thank you so much for keeping everyone informed. This new law will help a lot of fathers.
Posted by: Kristen | July 05, 2012 at 02:32 PM
There are important issues that must not be overlooked to protect the rights of a child. While at a stage when they are not yet capable, the law is there to make sure that they are given the best treatment that they deserve.
Posted by: Roxy | Attorney in Jenkintown Pa | June 19, 2012 at 08:07 PM
This is VERY exciting news. Long overdue for many children and bio dads who have been unjustly robbed of a relationship.
Posted by: Rae Fruth | June 14, 2012 at 12:45 AM