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Presumed Father Can Challenge Paternity For The First Time In Divorce Proceedings

Posted on Wednesday, March 14, 2018


The three-year time limit for filing a paternity challenge under the Revocation of Paternity Act (RPA) does not apply when the presumed father raises the issue in a divorce action, the Michigan Court of Appeals has ruled.
In Taylor v Taylor (Docket No. 336193), a published decision, the Court of Appeals was asked to determine whether a paternity challenge always has to be brought within three years of the child’s birth pursuant to MCL 722.1441(2). That part of the RPA says:

“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 parties in Taylor were married in 2000 and the youngest child was born in 2011 while the parties were separated. Both parties agreed, and DNA testing established, that the defendant is not the biological father of the youngest child. The plaintiff filed for divorce in 2016, when the youngest child was 5 years old. Thereafter, the defendant filed a motion for a paternity determination. The trial court denied the motion, finding it lacked jurisdiction because the defendant did not raise the paternity issue within three years of the child’s birth. In so ruling, the trial court interpreted §1441(2) as requiring a paternity issue be raised within three years of the child’s birth.
The defendant appealed, arguing the three-year limit did not apply if the paternity issue was raised in a divorce action. The Court of Appeals agreed.
In its analysis, the Court of Appeals noted that §1441(2) uses the disjunctive word “or” and that two alternatives for challenging paternity are provided:

  • when “an action is filed by the presumed father within 3 years after the child’s birth.”
  • when “the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother.”

The three-year limit only applies to the first option, and Taylor involves the second option, the Court of Appeals explained. Looking at the language of §1441(2), the appeals court said there was no “clear indication” the Legislature intended to use the word “and” rather than “or.”
According to the Court of Appeals, to rule otherwise would create the additional restriction that there must be a divorce or separate maintenance action in order to raise the issue. “[T]here is nothing in the statute which would suggest that this is what the Legislature intended,” the appeals court observed.
Thus, “we are left with only one rather unremarkable conclusion: the Legislature intended exactly what it said,” the Court of Appeals wrote. “The presumed father may raise the issue in a paternity action filed within three years of the child’s birth OR in a divorce action (without regard to how old the child is).”

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"Simply Put, Biology Does Not Control Either an Acknowledgment of Paternity or Its Revocation."

Posted on Thursday, August 27, 2015
This week, in Rogers v Wcisel, 312 Mich App 79 (2015), slip op, the Court of Appeals addressed in a published opinion what it means under the Revocation of Paternity Act (RPA) for there to be a "mistake of fact" justifying a revocation of an acknowledgement of paternity. The Court of Appeals first provided a detailed discussion of the facts in the case wherein an acknowledged father sought to revoke his paternity after DNA evidence revealed there was a zero percent chance he was the child's father. The Court of Appeals then discussed the requirements to revoke paternity when there was a properly executed acknowledgement of parentage, specifically where the party seeking to revoke paternity alleged a mistake of fact and had unchallenged DNA evidence that the acknowledged father was not the biological father. The Court of Appeals noted that under MCL 722.1437(2) (which is now MCL 722.1437(4) as of March 17, 2015), a person with standing must support an action for revocation with an affidavit stating sufficient facts to prove one of the enumerated bases, here mistake of fact, and if the affidavit is sufficient the court must then order a blood or tissue typing or a DNA test. MCL 722.1437(3). The evidence taken together must prove by clear and convincing evidence that the acknowledged father is not the father of the child. MCL 722.1437(3). The acknowledged father in this case alleged that the uncontroverted DNA test indicating he had a zero percent chance of being the child's biological father was alone enough to establish mistake of fact.

After a detailed discussion of two cases under a predecessor statute to the RPA (the Acknowledgment of Parentage Act),  Bay County Prosecutor v Nugent, 276 Mich App 183; 740 NW2d 678 (2007) and Sinicropi v Mazurek, 273 Mich App 149; 729 NW2d 256 (2006), and, Helton v Beaman, 304 Mich App 97, 105; 850 NW2d 515 (2014), a case under the same version of the RPA at issue here, the Court of Appeals refused to adopt the acknowledged father's position that the uncontroverted DNA evidence was enough to establish mistake of fact. The Court of Appeals stated, "Simply put, biology does not control either an acknowledgment of paternity or its revocation." Slip op at 8. A father who chooses to acknowledge parentage does not need to attest that he is the child's biological father, and the statutory term "acknowledged father" does not reference biological parentage. For revocation of an acknowledgement of parentage, whether the father is the biological father is a separate factor to be considered apart from the enumerated bases, here, mistake of fact. 

The Supreme Court held in In re Moiles, published order of the Michigan Supreme Court, filed February 21, 2014, (Docket No. 148094), fraud and misrepresentation could not be proven by showing the parties had knowledge of the possibility that the acknowledged father was not the biological father. The trial court, here, had found that the acknowledged father doubted his biological parentage when he signed the affidavit of parentage and similar to the Supreme Court in Moiles¸ refused to find a mistake of fact where the mistake was "only partial or where doubt about that belief is suspect." However, the Court of Appeals rejected the trial court's conclusion and adopted a common law definition of mistake of fact, meaning, "a misunderstanding, misapprehension, error, fault or ignorance of a material fact, a belief that a certain fact exists when in truth and in fact it does not exist." Slip op at 9, internal quotations omitted. The Court of Appeals specifically concluded that "[t]he law . . . does not require that a party have no knowledge that a fact might be untrue to create a mistake of fact. Instead, the party must act in part upon an erroneous belief." Slip op at 9. The Court of Appeals reversed the trial court's order denying the acknowledged father's motion to revoke his acknowledgement of parentage, holding that he had sufficiently proven mistake of fact, even though the trial court found he had doubts about his biological fatherhood when he signed the acknowledgment. Therefore, under the RPA, an acknowledged father need not wholly believe he is the biological father when signing an acknowledgment of parentage in order to be able to revoke that acknowledgement.

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Presumed Father is a Necessary Party to a Revocation of Paternity Act Claim

Posted on Thursday, June 18, 2015
In Graham v Foster, ___ Mich App __; __ NW2d __ (2015), the Court of Appeals held that a presumed father, ie, a mother's husband at the time of conception or birth of a child, is a necessary party to a Revocation of Paternity Act claim. The Court of Appeals affirmed the trial court's denial of summary disposition where an “alleged father” under MCL 722.1433(c), ie, “a man who by his actions could have fathered the child,” filed a complaint under the Revocation of Paternity Act seeking an order determining his paternity, an order of filiation, and joint custody with reasonable parenting time. Slip op at 1-2. The alleged father only named the mother as a defendant in the complaint. Slip op at 2. The mother filed a motion for summary disposition claiming that the alleged father could not satisfy the necessary factual requirements under MCL 722.1441(3)(a) and that the case should also be dismissed for failure to join a necessary party: the “presumed father.” Slip op at 2. She also argued that the statute of limitations had run, so the alleged father could no longer join the presumed father as a defendant. Slip op at 2. The alleged father argued that the presumed father was not a necessary party, and if he was a necessary party, requested the trial court allow him to amend his complaint to add the presumed father as a defendant. Slip op at 2. The trial court denied the mother's motion, concluding that genuine issues of material fact existed regarding whether the factual requirements were met and that the husband was not a necessary party to the litigation. Slip op at 2-3. The mother appealed the trial court's decision that the presumed father was not a necessary party. Slip op at 3. 

The Court of Appeals held that a “'presumed father' under MCL 722.1433(e), ie, “a man . . . presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth,” is a necessary party under MCR 2.205 (necessary joinder) because the presumed father has legal rights of parenthood and “[a] successful action by [the alleged father” would strip [the presumed father] of interests that must not be set aside without [the presumed father]'s fair chance to defend those interests.” Slip op at 3-4. The Court of Appeals further held that while generally the filing of an amended complaint that adds in a defendant means that the date of the amended complaint is used to determine if the statute of limitations has run, if the additional defendant to be added is a necessary party, the necessary party can be joined even after the expiration of the limitations period. Slip op at 4. The Court of Appeals discussed that under MCR 2.118(A)(2) trial courts should allow amendment of pleadings “when justice so requires.” Slip op at 4. Thus, in Graham, the Court of Appeals held that the alleged father should be allowed to amend his complaint to add the presumed father and affirmed the denial of summary disposition. Slip op at 4. The Court of Appeals noted in a footnote that if the presumed father was not added as a defendant, the alleged father's claim “would be defective in that it would lack a necessary party.” Slip op at 4 n 3. The Court of Appeals also held that the alleged party's granted motion for genetic testing was premature in light of the fact that the presumed father had not yet been added as a party. Slip op at 4 n 3.

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The COA issues perplexing published decision in Revocation of Paternity Act case

Posted on Wednesday, February 5, 2014
The Court of Appeals issued a real head scratcher today in Helton v Beaman. Bascially, the majority says that there is not best interests analysis when there is a revocation of an acknowledgement of paternity, relying on Moiles. But then the court goes on to say that the court can look at other factors and turns to the child custody act. First, it applies the change of circumstances/proper cause analysis to whether paternity should be revoked (to the extent that it will upset the established custodial environment of the child). Then it turns to the best interests factors in the child custody act, even though the opinion acknowledged that not even the best interests factors in ROPA apply. So at the end of the day, the COA affirmed the trial court’s decision which declined to set aside the acknowledgment of parentage. The concurring opinion by Kirsten Frank Kelly is pretty solid, in my humble opinion. It disagrees with Moiles and says that a conflict panel should be convened. The concurring opinion reasons that the best interests of the child from ROPA are to be applied in all revocation cases, including from a revocation of an acknowledgment of parentage. The concurrence explains why an acknowledgment of parentage is a paternity determination because it establishes paternity and makes the man who signs the affidavit of parentage the legal father of the child. The concurrence also provides a constitutional reason as to why the best interests from ROPA should apply. The dissenting opinion basically agrees with Moiles that the best interests factors do not apply to revocation of acknowledgment of parentage cases. The reasoning turns on the fact that ROPA's best interests section says it applies to "paternity determinations" and the dissent's opinion that an acknowledgment of parentage is not a paternity determination because it does not involve a finding by a court.

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