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Home Areas of Practice Family Law Paternity / Revocation of Paternity

Sunday17 December 2017

Paternity - Revocation of Paternity

The Revocation of Paternity Act allows the various parties to file a motion with the court challenging paternity in certain situations.  When each party can file and why is different.  The Act also governs several different factual situations.  Let’s look at them one at a time.

Acknowledgment of Parentage (Section 7)

An Acknowledgment of Parentage is a form completed and signed by the mother and father stating that the child is his.  MCL 722.1003.  It is often completed at the hospital or very near the child’s birth. The Revocation of Paternity Act allows the mother, acknowledged father (person who signed the Acknowledgment of Parentage), alleged father (person claiming to be the father of the child), or a prosecuting attorney to request that the Acknowledgment of Parentage be revoked.  This action has to be filed within 3 years of the child’s birth or 1 year of the Acknowledgment of Parentage.  It must be based on(with examples):

  • A mistake of fact (both the mother and the acknowledged father believed he was the father)
  • Newly discovered evidence not able to be found before the Acknowledgment of Parentage was signed (DNA testing of the child)
  • Fraud (the mother and her family hid the truth about the child’s paternity from the acknowledged father)
  • Misrepresentation or misconduct (the mother lied and claimed the acknowledged father was the father when she knew he was not)
  • Duress (the mother was in serious medical danger and wanted to provide for the child should she die)

In order for the court to revoke the Acknowledgment of Parentage, it must find clear and convincing evidence (the highest civil burden of proof) that the acknowledged father is not the actual father.

Order of Filiation (Section 9)

If the mother had previously obtained an Order of Filiation naming a particular man the father of her child without that man’s involvement in the court proceedings (by “Default”), the mother, the affiliated father (the one named in the order), or the alleged father (the person claiming to be the father), may file a motion to set aside that order.  The action has to be filed within 3 years of the child’s birth or 1 year of the Order of Filiation.  If the court denies the motion (because for example it finds that the alleged father is not the actual father), the moving party will be required to pay for the attorney fees and costs of any other party (including the mother and the affiliated father).

Presumption of Fatherhood Due to Marriage (Section 11)

Prior to the Revocation of Paternity Act, it was presumed by law and by the courts that any child conceived or born during a marriage was the “product of that marriage” and that the husband in the marriage was the father of the child.  The only way that presumption could be challenged was by either the husband or the wife during divorce proceedings.  The alleged father could never file a motion to assert his own paternity.  Under the new law this has changed.  It lays out different ways each party can challenge the presumption.

The Mother

The mother of the child can file a motion to establish paternity if:

  • The presumed father (husband), the alleged father (who is named in the motion), and the mother, openly acknowledged the biological tie between the alleged father and the child at some time. (This action must be filed within 3 years of the child’s birth)
  • The presumed father has failed to provide regular and substantial support for 2 years when otherwise able (and without good cause) or in violation of an existing support order.
  • The child is less than 3 years old and does not live with the presumed father.

The Presumed Father (Husband)

The presumed father of the child can ask that the court determine the child was born out of wedlock and determine paternity within 3 years of the child’s birth or as part of a divorce or complaint for separate maintenance (legal separation).

The Alleged Father

For the first time, the Revocation of Paternity Act allows what has been known as a “putative father” and is now called an “alleged father” to file a motion challenging the legal presumption that the husband of the mother is also the father of her child.  In those cases, the alleged father must show:

  • The alleged father didn’t know or have reason to know the mother was married at the time the child was conceived, and they together with the presumed father openly acknowledged the biological tie between the alleged father and the child at some time. (This action must be filed within 3 years of the child’s birth).
  • The alleged father didn’t know or have reason to know the mother was married at the time the child was conceived, and the presumed father has failed to provide regular and substantial support for 2 years when otherwise able (and without good cause) or in violation of an existing support order.
  • The mother was not married at the time the child was conceived. (This action must be filed within 3 years of the child’s birth).

The Department of Human Services

The State, though the Department of Human Services, may also file an action to determine paternity of an alleged father if the child is receiving public assistance (including MI Child medical assistance).  This can only happen if:

  • The presumed father has failed to provide regular and substantial support for 2 years when otherwise able (and without good cause) or in violation of an existing support order.
  • The child is less than 3 years old and does not live with the presumed father.

The Role of the Court

In all the above cases, the court may refuse to enter an order if it would be against the “best interests of the child” based on the following factors:

  • The presumed father‘s conduct;
  • How long the presumed father has known he might not be the child’s father;
  • The facts around the discovery that the presumed father might not be the child’s father;
  • The relationship between the presumed father or alleged father and the child;
  • The age of the child;
  • The potential harm to the child;
  • The disruption of the father-child relationship; and
  • Any other factor.

The court also must order blood, tissue, or DNA testing to determine paternity, but is not bound by the results of the test.  The court may only set aside orders from Michigan.  Also, it may grant extensions of the deadlines contained in the act under certain limited circumstances.  Except where stated above, the court may require the losing party to pay the attorney fees and costs of the winning party.

Any of the above actions that must be filed within 3 years of the child’s birth (or 1 year of a previous document), may also be filed before June 12, 2013.  This creates a narrow window for the parents of older children to have the court reevaluate paternity in their cases.  If you fall into this category, it is important that you speak with a family lawyer soon to determine whether a motion should be filed in your case before the year is out.