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Issue Alert - 03-09-01

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Sep 18, 2003

Issue Summary:

The Michigan Court of Appeals in a split decision has allowed a biological father to establish paternity even though the mother was married to someone else at the time the child was conceived and born.

Persons Affected:

Parents not married to each other when a child is conceived and born, the mother's husband, the child


Family Law

What's Happening?

In Kaiser v Schreiber (COA No. 244428), Judges David Sawyer and Bill Schuette reversed a Kent County Circuit Court judge who granted the mother's motion for summary disposition of a complaint by a putative father since the mother was married at the time of the child's birth. Judge Kurtis Wilder dissented.It is well established that putative fathers cannot bring an action for paternity when the child is born to a woman who is married (Girard v Wagonmaker, 437 Mich. 231). The father must allege that the child was born "out of wedlock". The statute defines "a child born out of wedlock" as a "child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child which the court has determined to be a child born or conceived during a marriage but not issue of that marriage." MCL 722.711(a).In his complaint the father alleged that he was the biological father of the child. In her responsive pleading the mother admitted that the plaintiff was the father. The court then entered a temporary stipulated order that referred to the child as "their child" and to each other as "the other parent". The appellate court ruled that it was this admission and the subsequent order that satisfied the second part of the definition of a child born out of wedlock. In an interesting twist the judges state that if the mother had not admitted that the plaintiff was the father and had moved for summary disposition under the Girard case, the trial court would have properly granted the motion. The majority opinion is a treatise on the difference between subject-matter jurisdiction and standing. It also is a thorough discussion of MCR 2.116, the rule on summary disposition.In a brief concurring statement, Judge Schuette writes a colorful last paragraph which provides insight into the court's reasoning and an argument for further appeal: By reversing the trial court's decision in this case, Scott Kaiser has picked the lock and opened the doors to the halls of justice. Quite possibly,the equal protection considerations which are embedded into the facts and circumstances of this case may permanently open the door to similarly situated plaintiffs.Judge Wilder dissented refering to Bowie v Arder, 441 Mich. 23, and Terry v Affum, 233 Mich. 498, which speak directly to the standing issue. Both cases did not allow a party to create standing out of a prior agreement. He reasoned that the mother's admission that the plaintiff was the father of her child and the subsequent stipulation to joint legal custody and parenting time, did not give the plaintiff standing to assert his paternity to a child born out of wedlock. The dissent also questioned the stipulated temporary order which did not involve the woman's husband, in fact her husband was not given notice of the proceedings or an opportunity to protect his interests. Judge Wilder would have required the court to hold a hearing or at least make some findings of facts to satisfy the requirement that "a child the court has determined to be a child born or conceived during a marriage but not issue of that marriage" (MCL 722.711(a)).The implications for practitioners are clear. The mother of a child born out of wedlock should not sign an acknowledgement of paternity, name the father for the birth certificate, admit facts in any action brought or stipulate to any temporary orders. To follow the logic of this case, those facts would give the biological father a basis to file for paternity. Instead she should file a motion for summary disposition under Girard. The uncertainties about paternity case law are a minefield for attorneys and courts alike. This July in In re CAW, 665 NW2d 475, the Supreme Court refused to recognize the rights of a putative father who was mentioned during a court hearing on a termination of parental rights case, although the Michigan Court of Appeals had supported the biological father. In Girard and the line of cases following it, the rights of a woman's husband and the public policy of supporting wedded family life have prevailed against the rights of putative fathers. If, as Judge Schuette alleges, the court is concerned over equal protection issues, an en banc Court of Appeals decision or leave granted by the Supreme Court is preferable to allowing a party to "pick the lock... to the halls of justice." In the Kaiser case Pam Hoekwater from the Grand Rapids office of Western Michigan Legal Services is the mother's attorney. She is planning to file an application for leave to appeal to the Michigan Supreme Court.

Finding Help

Most legal aid and legal services office handle these type of cases, and they do not charge a fee. You can locate the "free" legal services or legal aid office that serves your county on the Michigan LawHelp website ( or look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.