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Paternity Disestablishment and Marital Children

MPLP Summer 2007 Family Law Section Newsletter Article

                Issue 34, Summer 2007

Paternity Disestablishment and Marital Children

By Sanjum Punia, MPLP Summer Law Clerk

The paternity guidelines in Michigan for a child born or conceived during the course of marriage are very narrow.  The current rule regarding paternity of a child born or conceived during a marriage is that the husband is automatically presumed to be the father.  Under Michigan law, “a putative father cannot bring an action to determine the paternity of a child born while the mother was married to another man.”  Girard v. Wagenmaker, 437 Mich. 231 (1991).  Typically, the question of the paternity of a child born or conceived during a marriage can only be raised in the course of a divorce proceeding while the child is a minor and the judge determines if there is clear and convincing evidence to show that the husband is not the biological father.  If the judge does find clear and convincing evidence that the husband is not the father, his rights and responsibilities regarding the child end and a putative father may come forward.

 

As the law presently stands, biological fathers have very few opportunities to challenge paternity of a child born or conceived during a marriage.  The Michigan Paternity Act, as it stands now, asserts that a biological father can claim rights if the child is born out of wedlock.  A child born out of wedlock is defined 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 that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.”  MCL 722.711(a).  This definition provides significant limitations on a biological father’s request to establish paternity.

 

Case law, further illustrates the lack of standing a biological father has when a child is born or conceived during the course of a marriage.  In Barnes v. Jeudevine, 475 Mich. 696, 699 (2006), decided by the Michigan Supreme Court in 2006, a husband commenced divorce proceedings against his wife without the knowledge that she was pregnant.  A default judgment of divorce was granted with the following provision “no children were born of this marriage and none were expected.”  Id. at 700.  Four months later she gave birth.  Id.  The birth certificate identifies the former boyfriend as the child’s father and an affidavit of parentage signed by the former boyfriend and mother of the child states that he is the father.  Id.  The boyfriend and the mother lived together with the child for over four years.  Id.  When the relationship ended the mother stopped allowing the boyfriend to see the child.  Id.  The boyfriend filed a paternity action against the mother.  To support his position, the boyfriend cited language in defendant’s divorce judgment, “that no children were born of this marriage and none are expected” and the affidavit of parentage.  Id.  In response, the mother denied that the child was born out of wedlock because she was married at the time the child was conceived.  Id.  She further claims she signed the affidavit of parentage under duress.  Id. at 701.

 

Despite the language in the signed affidavit of parentage: “that upon signing, the mother admits she was not married when the child was born or conceived; or that the child although born or conceived during a marriage is not the issue of the marriage as determined by court order,” the court found that this and the other factors presented did not provide enough clear and convincing evidence that the child was not an issue of the marriage.  Here, it is undisputed that the mother was married at the time of conception.  Therefore, the boyfriend must present clear and convincing evidence that the child was not an issue of the marriage. The question is whether the statement in the divorce judgment, “that no children were born of this marriage and none are expected” was a court determination of sufficient specificity to conclude that the child was not an issue of the marriage and, therefore, born out of wedlock.  The Court concluded it was not:

Consistent with Girard and In re KH, we hold that a court determination under [the Paternity Act] that a child is not “the issue of the marriage” requires that there be an affirmative finding regarding the child’s paternity in a prior legal proceeding that settled the controversy between the mother and the legal father.  Id. at 705.

 

The court, therefore, ruled that the putative father lacked standing to establish paternity.  Id. at 707.

 

However, recently a bill has been introduced that proposes to give biological fathers who are not the husband of the married woman, a chance to establish paternity.  Senate Bill No. 506, introduced by Senators McManus and Kahn, proposes that a putative father may bring an action to establish paternity within one year of the birth of the child along with one or more conditions.  At least one of the following conditions must exist for a putative father to petition for paternity: (A) the mother and putative father mutually and openly acknowledge a biological relationship between the putative father and the child through affidavits and DNA tests submitted to the courts; (B) the mother is legally separated from her husband or not married at the time of conception, and the putative father files an affidavit to the court stating he is the biological father and consents to DNA testing; (C) the mother acknowledges in writing the biological relationship of the child with the putative father, the putative father must demonstrate parenting time with child, the putative father must submit an affidavit stating he is the biological father to the court, and consent to DNA testing.  In all cases, the putative father must give notice to the legal father.

 

To a limited extent, the bill addresses the potential negative impact such a paternity action could have on an intact family.  First, all actions by a putative father must be brought within one year of the child’s birth and not beyond.  Second, the putative father must either have DNA results proving he is the child’s biological father prior to filing or must consent to testing after filing.  Finally, the impact on the existing family is reduced somewhat by requiring that the mother file with the putative father, that the child be conceived while she was separated or not yet married, or that there is a record or parenting time with the putative father.  Although the bill if passed might not have a major impact on the number of paternity actions filed by putative fathers, it will provide more opportunities to challenge paternity of a child born or conceived during a marriage than the current law allows.


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