Paternity
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Chapter 13: Paternity
J. Matthew Catchick Jr., Catchick Law PC; Lisa J. Schmidt, Schmidt Law Services PLLC
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During the current COVID-19 pandemic, several temporary orders alter certain procedures and filing deadlines in Michigan courts. See Updated: Michigan Court Changes Due to COVID-19 for details. Follow blog posts and discussion in the ICLE Community for further information, and check with your local court about their emergency protocols.

CONTENTS
Establishing Paternity in Child Custody and Divorce Proceedings
Establishing Paternity Under the Acknowledgment of Parentage Act
Establishing Paternity Under the Summary Support and Paternity Act
Establishing Paternity Under the Genetic Parentage Act
Other Ways to Establish Paternity
The Revocation of Paternity Act

I.   Avenues to Establish Paternity

§13.1   In Michigan, the paternity of a child may be established under the following statutes:

  • The Paternity Act, MCL 722.711 et seq. The purpose of the Paternity Act is to provide for support of children born out of wedlock. Van Laar v Rozema, 94 Mich App 619, 288 NW2d 667 (1980); Tuer v Niedoliwka, 92 Mich App 694, 285 NW2d 424 (1979). If paternity is not established under one of the other acts described below or the laws of another state, the party seeking a finding of paternity may file suit in the family division of the circuit court under MCL 722.714(1). See also MCL 600.1021(1)(h). The mother, the alleged father (also known as a putative father), or the Department of Health and Human Services (DHHS) may bring the action. MCL 722.714(1). The plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). This requirement frequently created a standing problem for a man seeking to establish his paternity when the mother was married to another person during any part of the pregnancy. The Revocation of Paternity Act (ROPA) (discussed below) remedied this problem by allowing an alleged father to bring an action to determine that a presumed father (i.e., the mother’s husband) is not a child’s father or to set aside an acknowledgment of parentage or an order of filiation under limited circumstances. See §§13.37–13.49. For a thorough discussion of establishing paternity under the Paternity Act, see §§13.2–13.27.
  • The Acknowledgment of Parentage Act (APA), MCL 722.1001 et seq. Unmarried parents may establish paternity under the APA by signing an acknowledgment of parentage, which gives a child born out of wedlock or born or conceived during a marriage but not the issue of that marriage (as determined by a court of competent jurisdiction) the same status as a legitimate child. The effect of a properly executed and filed acknowledgment of parentage is to establish the acknowledged father as the legal parent of the child. The APA grants the mother initial custody of the child until otherwise determined by the court or agreed on by the parties in writing and acknowledged by the court. MCL 722.1006.
  • The Revocation of Paternity Act (ROPA), MCL 722.1431 et seq. ROPA permits the mother, the acknowledged father (a person who has signed an acknowledgment of parentage), an alleged father, the presumed father, the genetic father, the prosecuting attorney, or the DHHS to bring an action to set aside acknowledgments, determinations, and judgments relating to paternity. The presumed father may also raise paternity in an action for divorce or separate maintenance between the presumed father and the mother. MCL 722.1441(2). See §§13.37–13.49 for further discussion of the procedures to establish paternity under ROPA.
  • The Genetic Parentage Act (GPA), MCL 722.1461 et seq. If either the mother or the alleged father is receiving Title IV-D services, the parties may voluntarily establish paternity, if the child is born out of wedlock, under the GPA. A man may be considered the biological father under the GPA if all of the following are true: (1) the parties and the child submit to genetic testing by a qualified person, (2) the testing shows that the probability of paternity is 99 percent or higher, and (3) the parties sign the requisite DHHS form agreeing to submit to the test. MCL 722.1467. Paternity is established if the genetic testing determines that the man is the biological father. MCL 722.1469.
  • The Summary Support and Paternity Act (SSPA), MCL 722.1491 et seq. The SSPA permits a Title IV-D agency to establish paternity for a child who is receiving public assistance or whose mother or alleged father has applied for Title IV-D services. MCL 722.1493. The agency must file with the court a statement signed by either the agency or one of the parties and serve a copy of the statement and a notice of intent to establish paternity on the parties. The nonfiling party has 21 days to (1) admit paternity in writing, (2) submit a written request for genetic testing, or (3) produce proof of a paternity exclusion. MCL 722.1495.
  • The Uniform Interstate Family Support Act (UIFSA), MCL 552.2101 et seq., and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), MCL 780.151 et seq. A responding court in Michigan with jurisdiction may determine a child’s parentage in an action brought under the UIFSA or a substantially similar law. See MCL 552.2402; see also MCL 552.2305(2)(a), .2311, .2316. A Michigan court may determine paternity under the RURESA if paternity has not been legally acknowledged, previously adjudicated, or established by marriage. See MCL 780.166a.
  • The Michigan adoption code, MCL 710.21 et seq. In an adoption action, a child may be legitimized on finding that the putative father has established a custodial relationship with the child or has contributed regular and substantial support to the mother or child for 90 days before notice of a termination hearing was served on him. If the mother’s parental rights have been terminated and the court finds that it is in the best interests of the child that the father be awarded custody, the child will be legitimized for all purposes. MCL 710.39. In addition, a man claiming to be the father may file a notice of intent to claim paternity before the birth of the child. MCL 710.33.

Note that the Child Custody Act of 1970, MCL 722.21 et seq., may not be used to determine paternity. See Hoshowski v Genaw, 230 Mich App 498, 584 NW2d 368 (1998); Afshar v Zamarron, 209 Mich App 86, 530 NW2d 490 (1995).

In general, the U.S. Supreme Court has addressed the issue of equal protection for children born out of wedlock. The Court ruled that children born out of wedlock may not be completely denied a right to inherit from their father, although the form of proof required may be different than that required of children born in wedlock. Lalli v Lalli, 439 US 259 (1978); Trimble v Gordon, 430 US 762 (1977).

II.   Establishing Paternity Under the Paternity Act

A. Procedure

§13.2   The history of the Paternity Act and the previous acts are confusing concerning the civil, criminal, or quasi-criminal nature of the proceedings. See Romain v Peters, 9 Mich App 60, 155 NW2d 700 (1967). However, a paternity action is generally considered to be civil in nature. Bowerman v MacDonald, 431 Mich 1, 427 NW2d 477 (1988). The only remaining criminal procedural right afforded is that of appointed counsel for an indigent defendant. Larrabee v Sachs, 201 Mich App 107, 506 NW2d 2 (1993). The rules applicable to other civil actions govern procedure in paternity actions except as modified by MCR 3.217 and the Paternity Act. MCL 722.714(1); Larrabee.

There is no longer a right to a jury trial in paternity cases under MCL 722.715(1).

See form 13.1 for a checklist to establish paternity under the Paternity Act.

B. Parties

1. In General

§13.3   Actions under the Paternity Act may be brought by the mother; the father; a child who became 18 years old after August 15, 1984, and before June 2, 1986; or, in certain circumstances, the DHHS. MCL 722.714(1). An illegitimate child also has a common-law right to file suit to establish paternity incident to the child’s right to support. Phinisee v Rogers, 229 Mich App 547, 582 NW2d 852 (1998); see also Opland v Kiesgan, 234 Mich App 352, 594 NW2d 505 (1999) (equal protection guarantees require court to recognize paternity claim of minor child born out of wedlock). A legitimate child lacks standing to bring an action under the Paternity Act. Puffpaff v Hull, 169 Mich App 688, 426 NW2d 778 (1988). In Spada v Pauley, 149 Mich App 196, 385 NW2d 746 (1986), the court of appeals declined to extend the right to bring such an action to legitimate children even though such a right is given to illegitimate children. ROPA has expanded the class of parties able to initiate proceedings that could result in an order affecting the paternity of a child. See §§13.37–13.49 for a further discussion of ROPA.

If the child is supported in whole or in part by public assistance, the DHHS may file a complaint on the child’s behalf, joining the mother as a party plaintiff. There is no longer any requirement that the DHHS attempt to obtain the alleged father’s acknowledgment before commencing an action. In such cases, the prosecuting attorney (or an attorney otherwise authorized by statute) represents the DHHS. MCL 722.714(4).

2. Right to Counsel

§13.4   An indigent defendant’s right to appointed counsel in a paternity action was established by the ruling in Artibee v Cheboygan Circuit Judge, 397 Mich 54, 243 NW2d 248 (1976). The court based its opinion on what it described as the quasi-criminal nature of paternity proceedings. It stated that counsel is necessary to ensure a fair trial because the interests of the individuals affected by the proceedings are so substantial and the proceedings themselves are sufficiently complex.

When enacting the 1986 amendments to the Paternity Act, the Michigan Legislature wanted to ensure that indigent defendants retained their rights to counsel without specifically granting that right in proceedings that are not clearly criminal. Therefore, they included a subsection that preserved the rights of indigent defendants in Paternity Act proceedings established by Michigan courts before the 1986 amendments. MCL 722.714(13).

Under MCR 3.217(C)(1), a form must be served with the complaint and summons in Paternity Act cases that advises the alleged father of his right to an attorney and of the procedure for requesting the appointment of an attorney. Furthermore, the rule provides that if the alleged father appears in court following the issuance of a summons, the court must personally advise him of his right to the assistance of an attorney and that the court will appoint an attorney at public expense, at the alleged father’s request, if he is financially unable to retain an attorney of his choice. If the alleged father indicates he wants to proceed without an attorney, the record must affirmatively show that he was properly advised of his right to an attorney at public expense and waived that right. If the alleged father fails to appear in court after a summons is issued under the Paternity Act, the requirement of an affirmative record of advice and waiver does not apply. MCR 3.217(C)(2)–(4). The right to appointed counsel does not give the defendant the right to challenge a verdict on the ground that he was denied effective assistance of counsel. The court of appeals has held that the defendant who believes he had incompetent representation has an adequate remedy in a malpractice action. Kenner v Watha, 115 Mich App 521, 323 NW2d 8 (1982); Covington v Cox, 82 Mich App 644, 267 NW2d 469 (1978).

A plaintiff may be represented by a private attorney, or, if the complainant is the parent who has physical possession of the child and cannot afford an attorney, is eligible for public assistance, or is receiving child support services as provided by federal law, the complainant may be represented by the prosecuting attorney or another person permitted by statute. MCL 722.714(4)–(5). According to federal statute and regulations, states must provide child support services to anyone who requests those services. The DHHS provides these services to individuals, regardless of their income, through contracts with local prosecuting attorneys and Friends of the Court. Representation is limited, however, to child support services. In a dispute regarding custody or parenting time, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court under MCL 722.714(4) will not be required to represent either party regarding that dispute. MCL 722.717b.

3. Incarcerated Parties

§13.5   In a domestic relations action involving minor children or any other action involving the custody, guardianship, neglect, or foster care placement of minor children or the termination of parental rights, if one of the parties is incarcerated, the party seeking an order regarding a minor child must do all of the following:

  • contact the Department of Corrections to confirm the incarcerated party’s prison number and location,
  • serve the incarcerated person and file proof of service with the court,
  • state in the petition or motion that a party is incarcerated and provide the party’s prison number and location, and
  • state in the caption that a telephone or video hearing is required by MCR 2.004(B).

MCR 2.004(B).

A court may not grant the relief requested by the moving party concerning the minor child if the incarcerated party has not been offered the opportunity to participate in the proceedings. MCR 2.004(F). This provision does not apply if the incarcerated party actually participates in a telephone call or videoconference or if the court determines that immediate action is necessary to temporarily protect the child. Id.

The court may impose sanctions if it finds that an attempt was made to keep information about the case from an incarcerated party to deny that party access to the courts. MCR 2.004(G).

After the moving party complies with MCR 2.004(B), the court must issue an order requesting that the Department of Corrections or the facility where the incarcerated party is located allow that party to participate in a hearing or conference, including a Friend of the Court adjudicative hearing or meeting, by a noncollect and unmonitored telephone call or by videoconference with the court or its designee. The order must include the date and time for the hearing and the prisoner’s name and prison identification number and must be served by the court on the parties and the warden or supervisor of the facility where the incarcerated party resides. MCR 2.004(C).

The purpose of the telephone call or videoconference is to determine

  • whether the incarcerated party has received adequate notice of the proceedings and has had an opportunity to respond and to participate;
  • whether counsel is necessary in matters allowing for the appointment of counsel to ensure that the incarcerated party’s access to the court is protected;
  • whether the incarcerated party is capable of self-representation if that is the party’s choice;
  • how the incarcerated party can communicate with the court or the Friend of the Court during the pendency of the action and whether the party needs special assistance for such communication, including participation in additional telephone calls or videoconferences; and
  • the scheduling and nature of future proceedings, to the extent practicable, and the manner in which the incarcerated party may participate.

MCR 2.004(E).

The provisions of MCR 2.004 that allow incarcerated parents to participate in family law matters relating to their children via telephone do not apply to prisoners incarcerated outside of Michigan. Family Indep Agency v Davis  (In re BAD), 264 Mich App 66, 690 NW2d 287 (2004).

C. Standing

§13.6   Standing is not usually an issue when the child’s mother brings a paternity suit, but when the putative father seeks to establish paternity, standing can be a pivotal question.

In Altman v Nelson, 197 Mich App 467, 495 NW2d 826 (1992), the alleged father brought a suit under the Paternity Act alleging that defendant mother was unmarried. In her answer, the mother asserted that she was married at the time of the child’s birth and she submitted a copy of a marriage license and the child’s birth certificate. Blood tests confirmed that plaintiff was the child’s biological father, and an order of filiation was entered. The trial judge never addressed the marital status or standing issues, and the mother did not appeal the order of filiation. In a later custody battle, the trial court vacated the order of filiation and a custody order giving the father physical custody because the court determined that it had lacked jurisdiction to enter the original order of filiation. The court of appeals reversed, holding that the trial court had subject-matter jurisdiction to consider the paternity action because the allegations in plaintiff’s complaint were sufficient on their face to support jurisdiction. The court of appeals viewed the trial court’s failure to address the marital status and standing as an error in the exercise of its jurisdiction, rather than a lack of jurisdiction. Therefore, the order of filiation was not void. The appellate court stated that the mother should have timely followed the procedures for relief from an erroneously entered judgment. She could have appealed the order of filiation or moved to have the judgment set aside, but she waived her rights by waiting too long to exercise them (i.e., laches).

To establish standing under the Paternity Act, the plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). The Paternity Act defines 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 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). In Barnes v Jeudevine, 475 Mich 696, 718 NW2d 311 (2006), cert denied, 549 US 1265 (2007), defendant gave birth to a child four months after her divorce judgment was entered. The birth certificate identified plaintiff as the child’s father, and an affidavit of parentage signed by plaintiff and defendant stated that plaintiff was the father. Plaintiff and defendant lived together and raised the child for over four years after entry of the judgment of divorce, until defendant ended the relationship. Plaintiff filed a complaint under the Paternity Act, claiming that he was the father of the child. The Michigan Supreme Court, in a 4-3 decision, held that plaintiff did not have standing under the Paternity Act because the child was conceived during defendant’s marriage to another man and was therefore presumed to be issue of the marriage. According to the majority, defendant’s default judgment of divorce stating that “‘no children were born of this marriage and none are expected,’” id. at 700, did not qualify as a court determination that the child was born out of wedlock because it did not settle with finality a controversy regarding the child’s legitimacy. The dissenting justices would have held that the default judgment was a legally sufficient court determination that the child was not the issue of defendant’s marriage.

ROPA significantly expands the concept of standing to include certain third parties as having standing to bring an action to determine that a presumed father is not a child’s father or to bring an action to set aside an acknowledgment of parentage or an order of filiation. See §13.37 for a discussion on the operation of ROPA.

In Girard, an alleged father filed a complaint under the Paternity Act, claiming that he was the biological father of a child who was conceived and born while the mother was married to another man. The court dismissed the complaint, ruling that the alleged father had no standing to bring a claim under the Paternity Act. Three of the justices agreed that this court of appeals decision did not necessarily conflict with the Michigan Supreme Court’s narrow holding in Syrkowski v Appleyard, 420 Mich 367, 362 NW2d 211 (1985), a surrogate-mother case where an alleged father was allowed to use the Paternity Act to determine his paternity of a child. Syrkowski was distinguished from Girard because it dealt with subject-matter jurisdiction while Girard concerned standing and because the husband’s filing of a certificate of nonconsent to the paternity of the child born to his wife served as a rebuttal of the child’s legitimacy. Girard, 437 Mich at 248.

For other cases where the court of appeals held that the putative father did not have standing, see the following:

  • Sprenger v Bickle, 302 Mich App 400, 839 NW2d 59 (2013) (plaintiff lacked standing to file complaint under Paternity Act when child was born after defendant remarried her ex-husband, even though plaintiff and defendant asserted plaintiff was child’s father during defendant’s pregnancy)
  • Pecoraro v Rostagno-Wallat, 291 Mich App 303, 306, 805 NW2d 226 (2011) (plaintiff biological father lacked standing to file complaint under Paternity Act when defendant was married to her husband at time of conception and birth, because an order of filiation secured in New York did not satisfy “court determination” prong under MCL 722.711(a))
  • Numerick v Krull, 265 Mich App 232, 694 NW2d 552 (2005) (when defendant mother became pregnant during relationship with plaintiff and plaintiff filed suit under Paternity Act during defendant’s pregnancy to establish paternity, defendant married another man before child was born and plaintiff’s action was dismissed because child was not “born out of wedlock” within meaning of statute, MCL 722.711(a))
  • McHone v Sosnowski, 239 Mich App 674, 609 NW2d 844 (2000) (plaintiff did not have standing to pursue order of filiation because mother was married to another individual at time child was born, and there had been no prior judicial determination that child was not issue of marriage)
  • Hauser v Reilly, 212 Mich App 184, 536 NW2d 865 (1995) (plaintiff lacked standing because there had been no prior determination that child was not issue of marriage)
  • Spielmaker v Lee, 205 Mich App 51, 517 NW2d 558 (1994) (plaintiff could not maintain an action under Paternity Act because even though child was conceived while defendant was unmarried, child was born after defendant was married to another man)

In Opland v Kiesgan, 234 Mich App 352, 594 NW2d 505 (1999), plaintiff gave birth to a child while she was married to, but separated from, defendant Craft. Plaintiff later brought suit under the Paternity Act against defendant Kiesgan. The court of appeals determined that plaintiff did not have standing against defendant Kiesgan because there had been no prior determination that the child was not an issue of plaintiff’s marriage to defendant Craft. The trial court, on the request of plaintiff and defendant Craft, later entered a consent judgment of divorce, modifying the original divorce judgment to provide that defendant Craft was not the child’s father. Plaintiff then refiled her paternity action against defendant Kiesgan. The trial court granted defendant’s motion for summary disposition, but the court of appeals reversed. The appellate court first noted that plaintiff had followed the correct procedure in correcting the standing problem. The appellate court then held that the amended divorce judgment was in fact sufficient to satisfy the “prior court determination” standing prong under the Paternity Act. In addition, in an issue of first impression, the court held that the doctrine of judicial estoppel did not act to bar the complaint under the Paternity Act. The court noted there was little danger of misuse of the judicial process because the issue could be definitively resolved through DNA testing. There was also no danger of inconsistent rulings because defendant Kiesgan either was or was not the father.

D. Jurisdiction and Venue

§13.7   Jurisdiction and standing are two different concepts that are both necessary for any legal proceeding. Jurisdiction allows a court to exercise power over a case or category of cases, where standing is the ability of a party to demonstrate they have a sufficient connection to and harm from the action to justify the party’s participation in the case. The family division of the circuit court has jurisdiction over paternity actions. MCL 600.1021(1)(h), 722.714(1). A defendant must raise any issue regarding personal jurisdiction in the first responsive pleading or else it is waived. Teran v Rittley, 313 Mich App 197, 882 NW2d 181 (2015) (citing MCR 2.116(D)(1)).

An action is not permitted under the Paternity Act if the child’s father acknowledges paternity under the APA, MCL 722.1001 et seq., or if the child’s paternity is established under the law of another state. MCL 722.714(2).

Practice Tip

  • If you are filing an action to establish paternity under the APA, you should also plead in the alternative under the Child Custody Act of 1970 and Paternity Act so all relevant avenues for establishment are covered.

The establishment of paternity under the law of another state has the same effect, and may be used for the same purposes, as an acknowledgment of parentage or order of filiation under the Paternity Act. MCL 722.714b. See §13.9.

In Department of Soc Servs v Franzel, 204 Mich App 385, 516 NW2d 495 (1994), an unmarried man had signed an affidavit of parentage and stipulated to an order establishing his paternity and requiring him to pay child support. He was later allowed to impeach the affidavit on a showing that blood testing conclusively excluded him as the father of the child. The court of appeals found that the circuit court had both personal and subject-matter jurisdiction over the man and that he was entitled to equitable relief. The APA states that an acknowledgment of parentage establishes paternity for all purposes. See MCL 722.1004. But see In re AGD, 327 Mich App 332, 933 NW2d 751 (2019).

Venue for a complaint under the Paternity Act is in the county where the mother or the child resides. MCL 722.714(1). If both the mother and the child reside outside the state, venue is in the county where the putative father resides or is found. MCL 722.714(1). The fact that the child was conceived or born outside Michigan does not bar a complaint from being entered against the putative father. MCL 722.714(1); see Teran (MCL 722.714(1) pertains to venue, not jurisdiction). See §13.8 for a discussion of interstate proceedings to determine parentage.

E. Interstate Adjudication of Paternity

1. In General

§13.8   The establishment of paternity under the law of another state has the same effect and may be used for the same purposes as an acknowledgment of paternity or order of filiation under the Paternity Act. MCL 722.714b. Comity, the legal principle that courts from different jurisdictions will mutually recognize each other’s judicial acts, does not necessarily bar relitigation in Michigan of paternity issues that have been adjudicated in a foreign court. In Bessmertnaja v Schwager, 191 Mich App 151, 477 NW2d 126 (1991), a Swedish court found plaintiff to be the child’s father, but the court did not order child support. The Michigan court relitigated the issues because Michigan’s long-standing public policy is to provide support to illegitimate children. If the Swedish judgment had been recognized and given effect, it would have violated that long-standing policy. See also Pecoraro v Rostagno-Wallat, 291 Mich App 303, 306, 805 NW2d 226 (2011) (New York court’s filiation order not enforced in Michigan because New York court lacked personal jurisdiction over husband, who is necessary party to paternity proceeding under Michigan law).

2. Res Judicata and Comity

§13.9   Before ROPA was enacted, caselaw generally held that a subsequent proceeding to relitigate the issue of the ex-husband’s paternity was barred by res judicata. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986); Rucinski v Rucinski, 172 Mich App 20, 431 NW2d 241 (1988). But see Phinisee v Rogers, 229 Mich App 547, 582 NW2d 852 (1998) (res judicata did not bar adult child’s suit against defendant to establish paternity even though defendant was found not to be child’s father in paternity action 15 years prior).

Under ROPA, however, a challenge to paternity may be made at any stage of the existing proceeding in a support, custody, or parenting time action, subject to the limitations periods in ROPA. MCL 722.1443(1); see also MCL 722.1441(5); Glaubius v Glaubius, 306 Mich App 157, 855 NW2d 221 (2014). Accordingly, res judicata does not bar a postjudgment of divorce paternity challenge under ROPA. Glaubius, 306 Mich App at 175 (“in the particular circumstances described in [ROPA], the Legislature intended to authorize postjudgment challenges to paternity, including for cases in which paternity was or could have been litigated”).

If the father moves out of state or if the judgment was obtained pursuant to the long-arm statute, interstate enforcement may be necessary. This may be done using the UIFSA, MCL 552.2101 et seq., or its predecessor the RURESA, MCL 780.151 et seq. The UIFSA and the RURESA are uniform interstate enforcement acts. Under the RURESA, Michigan courts are required to use the torts section of the long-arm statute, MCL 600.705, to obtain limited personal jurisdiction over an out-of-state defendant. (Although the RURESA was not repealed as part of the adoption of the UIFSA, RURESA actions are rare given all 50 states adopted the UIFSA. See §13.11.)

3. Uniform Interstate Family Support Act

§13.10   The UIFSA, MCL 552.2101 et seq., which every state has enacted, governs a court’s obligation to enforce and modify child support orders of another state’s court.

The UIFSA provides that Michigan courts may serve as either initiating or responding tribunals in interstate proceedings to determine parentage and establish child support. MCL 552.2305(2). A Michigan court with jurisdiction may render a judgment to determine parentage and may issue, enforce, and modify a child support order. MCL 552.2305(2)(a), .2402; see also MCL 552.2311, .2316. The court may not issue an order relating to custody or parenting time under the UIFSA. MCL 552.2104(2)(b).

The UIFSA has its own statutory provision for long-arm jurisdiction that specifies what contacts with the state are necessary to subject a party to the personal jurisdiction of Michigan courts for determining parentage and establishing child support. MCL 552.2201(1). A Michigan court may exercise personal jurisdiction over a nonresident individual’s guardian or conservator if at least one of the following applies:

  • the individual was personally served with notice in Michigan;
  • the individual has submitted to Michigan jurisdiction by consent, which is shown in a record, by the person entering a general appearance, or by the person filing a responsive document that has the effect of waiving any objection to personal jurisdiction;
  • the individual resided with the child in Michigan;
  • the individual resided in Michigan and provided prenatal expenses or support for the child;
  • the child resides in Michigan as a result of the individual’s acts or directives;
  • the individual has engaged in sexual intercourse in Michigan and the child might have been conceived by that act;
  • the person has acknowledged parentage in Michigan’s parentage registry; or
  • any other constitutionally acceptable basis for asserting personal jurisdiction.

MCL 552.2201(1). See §13.8.

The UIFSA allows the petitioner to enforce income withholding orders by filing the order directly with an employer or by registering the order with a support enforcement agency. MCL 552.2501, .2601, .2603(1). Under the UIFSA’s continuing, exclusive jurisdiction, the chances of multiple modifications of child support awards and competing orders in a support matter from two or more states are limited. See §§6.25–6.30 for further discussion of the UIFSA. In addition, an income withholding order may be obtained through the interstate income withholding process. MCL 552.671 et seq.

An individual petitioner or a support enforcement agency may commence a proceeding under the UIFSA by (1) filing a petition in a Michigan court for forwarding to a responding court in another state or (2) filing a petition or a comparable pleading directly in a court of another state or foreign country that has or can obtain personal jurisdiction over the respondent. MCL 552.2301(2).

A petition to determine parentage or to establish child support under the UIFSA must contain identifying information about the parties and the child, unless disclosure poses a risk to the health, safety, or liberty of a party or child. MCL 552.2311(1), .2312. An out-of-state petitioner is not required to be physically present in a responding Michigan court for determining paternity and for establishing, enforcing, or modifying a support order. MCL 552.2316(1). A party whose paternity of a child has been previously determined by law may not plead nonparentage as a defense to a proceeding under the UIFSA. MCL 552.2315.

On request, a support enforcement agency in Michigan, the Friend of the Court, or the prosecutor (or another party permitted by statute) must provide services to a resident petitioner or to certain foreign petitioners. MCL 552.2307(1)(a)–(b). An agency may also provide services to a nonresident petitioner, but it is not required. MCL 552.2307(1)(c).

4. Revised Uniform Reciprocal Enforcement of Support Act

§13.11   The UIFSA is the uniform law commissioners’ replacement of the RURESA, MCL 780.151 et seq., which also provides for interstate adjudication of paternity. Despite the enactment of the UIFSA, the RURESA has not been repealed. Cases under the RURESA are uncommon, however, because the UIFSA has been adopted in all 50 states and the UIFSA covers interactions with foreign jurisdictions. See 2015 PA 255.

Under the RURESA, adjudication of parentage may occur when paternity has not been legally acknowledged, previously adjudicated, or established by marriage and when the putative father asserts that he is not the father of a child for whom child support is sought. MCL 780.166a; Lucas Cty Dep’t of Human Servs v Wayne, 175 Mich App 102, 437 NW2d 291 (1989). A court may not adjudicate custody in a RURESA proceeding. MCL 780.182. Under the RURESA, Michigan courts are required to use the tort section of the long-arm statute, MCL 600.705, to obtain limited personal jurisdiction over an out-of-state defendant.

5. The Long-Arm Statute

§13.12   The long-arm statute may be used in some circumstances to obtain limited personal jurisdiction over an out-of-state defendant. MCL 600.705. The statute has been construed to give the broadest grant of jurisdiction that is consistent with due process. McGraw v Parsons, 142 Mich App 22, 369 NW2d 251 (1985). Constitutional due process is met when the defendant purposefully establishes the minimum contact in the state that the maintenance of the paternity suit does not offend traditional notions of fair play and substantial justice. Asahi Metal Indus Co v Superior Court of California, 480 US 102 (1987).

A three-part inquiry is used to determine whether a nonresident defendant has sufficient minimum contact with the forum state to support the exercise of limited personal jurisdiction:

(1) the defendant must purposely avail himself or herself of the privilege of acting in the forum state;

(2) the cause of action must arise from the defendant’s activities in the forum state; and

(3) the defendant’s acts must have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable.

Moore v McFarland, 187 Mich App 214, 466 NW2d 309 (1990); Rainsberger v McFadden, 174 Mich App 660, 436 NW2d 412 (1989).

The factors considered when determining reasonableness include (1) whether the defendant’s conduct and connection with the forum state indicate that the defendant would have reasonably anticipated being subject to the jurisdiction of the court there, (2) the burden that would be placed on the defendant, (3) the interest of the forum state in the matter, and (4) the interest of the plaintiff in obtaining relief. Rainsberger, 174 Mich App at 663–664.

In Moore, a nonresident defendant’s personal activities—such as making telephone calls, sending some periodic support payments to the resident plaintiff, and visiting plaintiff in the state to discuss the child—did not constitute “doing business in the state” for purposes of the long-arm statute. Furthermore, the court determined that defendant’s failure to pay costs and child support did not constitute the minimum contact sufficient to trigger the long-arm statute. In Rainsberger, defendant resided in Canada. The court of appeals found that the facts of the case did not constitute sufficient minimum contact between defendant and Michigan to establish jurisdiction under the long-arm statute. The sole fact that the child lived in Michigan was not sufficient to justify the exercise of limited personal jurisdiction over defendant. Furthermore, defendant did not waive his objections to the court’s jurisdiction by requesting that the court appoint him an attorney. For more information on the right to counsel, see §13.4.

F. Statute of Limitations and Retroactive Modification of Support

§13.13   Under the time-limit provisions of the Paternity Act, a paternity action may be instituted while the child’s mother is pregnant or at any time before the child reaches age 18. MCL 722.714(3).

Retroactive modification of child support is generally not permitted, MCL 552.603(2), and all child support orders must contain the statutory language of MCL 552.603(6)(a) limiting retroactive modification of support. However, retroactive support orders are allowed under certain limited circumstances. MCL 722.717(2). See also §12.42.

A child support obligation is retroactive only to the date of the paternity complaint unless the defendant was avoiding service of process, otherwise delaying the imposition of a child support obligation, or threatening or coercing the complainant into not filing a proceeding. MCL 722.717(2)(a)–(c).

In Caldwell v Chapman, 240 Mich App 124, 610 NW2d 264 (2000), a case decided under the pre-2004 version of the statute, the appeals court upheld an order requiring an out-of-state defendant to pay back child support that had accrued before plaintiff’s filing of a complaint under the Paternity Act, MCL 722.711 et seq. Pursuant to the plain language of the act in effect at the time, MCL 722.717(2)(c), the six-year statute of limitations for back child support was tolled while defendant was out of state. Although plaintiff did not file the complaint until the child was 17½, the tolling provision applied because defendant had left the state when the child was 4.

If the court finds that the payor failed to pay support under a support order and the failure was willful, it may order a surcharge, calculated at a rate tied to the 5-year U.S. treasury note rate, added to past-due support payments on January 1 and July 1 of each year. MCL 552.603a(1). Pursuant to 2009 PA 193, surcharges ordered on orders entered before December 31, 2009, were terminated as of December 31, 2009, and the court may not order a surcharge before January 1, 2011. MCL 552.603a(5), (6). The statutory fee is now used in lieu of judgment interest allowed by Langford v Langford, 196 Mich App 297, 492 NW2d 524 (1992). MCL 552.603(11).

G. The Complaint

§13.14   The complaint must name the person who is believed to be the father of the child and also state, as nearly as possible, when and where the mother became pregnant. MCL 722.714(7). See form 13.2 for a sample complaint. The court then issues a summons. MCL 722.714(8). Under the provisions, warrants are not issued and service may be made in any manner prescribed by the court rules for civil actions. MCL 722.714(3). This includes service by certified mail, return receipt requested, and delivery restricted to the addressee. MCR 2.105(A)(2). Service is made when the defendant acknowledges receipt of the mail. MCR 2.105(A)(2). If service of process cannot be made by normal procedures, the court may order service in any manner “reasonably calculated to give the defendant actual notice of the proceeding and an opportunity to be heard.” MCR 2.105(I)(1).

It is a misdemeanor to file or to aid in filing a false complaint about the identity of the father. However, an authorized DHHS official who acts in good faith in filing a complaint under the Paternity Act based on information and belief is exempt from criminal penalties. MCL 722.722. A complaint filed under the Paternity Act must be verified by oath or affirmation. MCL 722.714(4).

If a putative father is serving in the military, a complaint under the Paternity Act may be filed and the summons served as in other cases, but it must also comply with the provisions of the Servicemembers Civil Relief Act, 50 USC 3901 et seq. Usually, the applicable provisions of that act involve procedures for taking a default or for adjourning the trial when the defendant is on active duty. Each branch of the military has procedures to be followed when military personnel owe child support or are subject to a paternity claim. Generally, commanding officers must advise those in their command of actions against them and of their legal rights and responsibilities and must make arrangements for allotments (financial payments) for dependents and for leave to attend court proceedings. See 32 CFR 584.1; Army Regulation 608–99.

In an action under the Paternity Act, the complainant may be the mother, the father, the DHHS, or a child born during a certain time frame. MCL 722.714(1). The DHHS is required to assist an alleged father who has custody as well as the mother in these actions. MCL 722.714(4). The court may enter a default judgment against the defendant mother or father if a responsive pleading is not filed in accordance with the Michigan Court Rules. MCL 722.714(8). Neither party is required to testify before entry of a default judgment in a Paternity Act case. MCL 722.714(8).

The summons or other initial notice to a party in an action under the Paternity Act must contain notification that the party’s obligation to support the child will be determined and that the party’s rights to custody and parenting time with the child may also be determined during the paternity action. MCL 722.714a(1).

H. Discovery

1. In General

§13.15   Parties in civil proceedings may obtain discovery regarding any relevant matter that is not privileged. See MCR 2.302(B)(1). A party may take the sworn testimony of an opposing party by deposition. The rules applicable to other civil actions govern procedure in Paternity Act proceedings. MCR 3.217(A).

2. Blood- and Tissue-Typing Testing and DNA Profile Determinations

§13.16   Genetic testing is one of the most valuable and objective means of resolving paternity cases before trial. These tests are based on genetic principles and on studies of the occurrence of inherited characteristics in random populations of particular races. In general, these tests can exclude 99 percent or more of falsely accused males and yield a probability or likelihood of paternity for those not excluded.

Testing involves the determination of genetic markers that are present in pairs in the blood and tissue cells of every person. A child inherits one-half of each pair from the mother and the other half from the father. If a child has a marker that is not present in either the mother or the alleged father, someone else is the true father and the alleged father is excluded. This is considered a direct exclusion. If a child does not have a marker that the alleged father must pass on to each of his offspring, the alleged father is also excluded. This is considered an indirect exclusion. If the alleged father has all of the paternally derived genetic markers (those that must come from the father) in common with the child, he is included in a class of men who could be the child’s father. If this class is very small, the probability or likelihood of paternity is high. Thus, a likelihood of paternity or paternity index is established based on the occurrence of the particular combination of genetic markers in the random population of a certain race. The likelihood of paternity is expressed as a percentage (e.g., 97 percent), while a paternity index is expressed in terms of odds (e.g., 33 to 1).

Generally, when tests of human leukocyte antigens, red cell antigens, red cell isoenzymes, and serum proteins are conducted, the usual conclusions are either that the alleged father is excluded or a high likelihood of paternity is established. With results of such probative value, when test results exclude the man, the case is usually dismissed. When they show a high probability that the man is the father, he usually admits paternity. However, if the case cannot be resolved voluntarily, the blood tests may be admissible evidence at trial, subject to the objection provisions of MCL 722.716(4).

Over the years, DNA testing has become the most powerful and prominent test used in paternity determinations. With the advent of DNA profile determinations, the probability of excluding falsely accused males has dramatically increased. Likewise, if a DNA profile determination does not exclude a putative father, the probability of his paternity is extremely high.

DNA is a deoxyribonucleic acid and it is the genetic material that is found in the nucleus in most cells in the human body (nuclear DNA). DNA is also found in the energy-producing mitochondria of a cell (mitochondrial DNA). Nuclear DNA is inherited in equal portions from a person’s mother and father. Therefore, each person shares 50 percent of their DNA with their mother and 50 percent with their father. Full biological siblings also share DNA with each other. Mitochondrial DNA is inherited maternally, while DNA on the Y chromosome is inherited paternally.

In a DNA profile determination, the DNA may be extracted through a simple cheek swab (Buccal swab) or from blood or other cells obtained from each party. Children inherit half of their DNA code from their father and half from their mother. Therefore, the principles of probability from blood and tissue typing likewise apply to DNA profile determinations. The chances of two unrelated individuals having the same DNA are one in one quadrillion. Department of Health and Human Services, Family Support Administration, Office of Child Support Enforcement, National Institute of Child Support Enforcement, Paternity Establishment 65 (1990).

Because each person’s genetic material is so different, several comparisons of the child’s DNA code with that of the mother’s and the putative father’s give highly probative results. If a man is the biological father, a combination of blood and tissue-typing tests and DNA probes can produce probabilities of paternity very close to 100 percent and paternity indexes of one million to one. However, even with DNA profiling, contamination of samples, mislabeling, or other human errors can affect the results. See Thompson, Science and Society: Misprint, New Republic, Apr 3, 1989, at 14.

If a qualified person using a blood- or tissue-typing test or a statutorily compliant DNA profile determination concludes that there is a probability of paternity of 99 percent or higher, paternity is established. MCL 722.716(5).

If two or more people are determined to have a probability of paternity of 99 percent or higher, additional genetic paternity testing must be conducted until all but one of the putative fathers is eliminated, unless the dispute involves two or more putative fathers who have identical DNA. MCL 722.716(5).

Court-ordered testing. The Paternity Act provides for blood- and tissue-typing tests and DNA identification profile determinations. MCL 722.716(2). Either party may request tests, or the court may order them on its own motion. MCL 722.716(1). The court may also specify who will pay for the tests, including proportionate shares. MCL 722.716(3). See form 13.3 for a sample order for testing. If a party refuses to be tested, the court may enter a default judgment at the request of the appropriate party, in addition to other remedies. MCL 722.716(1)(a); Sturak v Ozomaro, 238 Mich App 549, 568–570, 606 NW2d 411 (1999). Tests must be conducted by a person who is accredited to perform paternity determinations by a nationally recognized scientific organization such as the American Association of Blood Banks. The test results are admissible in a trial, subject to the requirements of MCL 722.716(4)–(5).

The parties must file a petition for blood- or tissue-typing tests at or before the pretrial conference or, if a pretrial conference is not held, within the time specified by the court. MCR 3.217(B). Failure to do so waives the right to these tests unless the court permits a later application. MCR 3.217(C); see also Kenner v Watha, 115 Mich App 521, 323 NW2d 8 (1982) (decided under similar provision of previous version of this rule). The statute does not specify what tests must be used but states that they may include but are not limited to tests of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling. MCL 722.716(1). The more tests that are performed, the greater the likelihood of excluding a falsely accused man or showing a high probability of paternity.

MCL 722.716(4) requires that paternity test results be served on the mother and the alleged father and filed with the court. A party objecting to the test results has the burden of proving by clear and convincing evidence by a qualified person that foundation testimony or other proof of authenticity or accuracy is necessary for admission of the test results. MCL 722.716(4).

The U.S. Supreme Court has held that the defendant alleged father in a paternity case has a right to blood tests and a right to have the tests paid for if he cannot afford the costs. In the Supreme Court’s opinion, a defendant without access to the blood tests is denied due process of law because, without tests that can exclude most falsely accused men, he is denied a meaningful opportunity to be heard. Little v Streater, 452 US 1 (1981).

DHHS-requested testing. The DHHS is able to request genetic paternity testing in certain circumstances. If, after service of process, the parties fail to consent to an order naming the man as the child’s father, the DHHS (or its designee) may file and serve a notice on the mother and the alleged father requiring that they and the child appear for genetic testing. MCL 722.714(9). If any of the parties do not comply with the DHHS notice, the DHHS may seek an order from the court compelling the testing. MCL 722.714(10).

If the DHHS requests genetic testing or the court orders it, the DHHS must serve a notice on the mother and the alleged father with an explanation of the test to be performed, the purpose and potential uses of the test, how the test results will be used to establish paternity or nonpaternity, how the individual will be provided with the test results, and the individual’s right to keep the test results confidential. MCL 722.714a(2).

Requirement of a hearing. In Bowerman v MacDonald, 431 Mich 1, 427 NW2d 477 (1988), the supreme court held that because a paternity action is essentially a civil proceeding, it is unnecessary to require a probable cause hearing before ordering blood or tissue-typing tests. Filing a verified complaint under MCL 722.714 is sufficient grounds for ordering blood- and tissue-typing tests.

Enforcement of court-ordered testing. If the court orders testing and a party refuses to submit to the test, the court may either enter a default judgment at the request of the appropriate party or allow the refusal to be disclosed at trial, unless good cause is shown for not disclosing the refusal. MCL 722.716(1); Sturak, 238 Mich App at 568–570. The statute was amended in 1989 in response to the decision in Bowerman, where the court held that the use of a default judgment to enforce court-ordered testing conflicted with the Paternity Act and could not be used as a sanction. Contempt is also an appropriate sanction. The Paternity Act specifically states that disclosure and default are available in addition to “any other remedies available.” MCL 722.716(1).

In addition to the sanctions of contempt, entry of a default judgment, and disclosure at trial of a refusal to submit to blood testing, the general sanctions found in the civil court rules for failure to comply with an order are other possible remedies. For example, if a party failed to comply with a court order for blood testing, the other party could ask the court for an order that the blood test results be taken as established against the party who refused to submit to blood tests. MCR 2.313(B)(2)(a).

Because blood testing is so reliable and conclusive, the U.S. Supreme Court has found that defendants who have been named as fathers in paternity actions have a right to blood tests. Little. It is therefore equitable that sanctions for the failure to submit to a court-ordered blood test be severe.

Foundation for tests. Burnside v Green, 171 Mich App 421, 431 NW2d 62 (1988), and Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987), rejected the personal knowledge requirement for chain-of-custody evidence in paternity cases that was set forth in Willerick v Hanshalli, 136 Mich App 484, 356 NW2d 36 (1984). Atkinson adopted the foundation requirements formulated in Zyskowski v Habelmann, 150 Mich App 230, 388 NW2d 315 (1986) (blood alcohol case), vacated on other grounds, 429 Mich 873, 414 NW2d 886 (1987). Zyskowski allowed the chain of identification to be established either directly or by circumstantial evidence.

Burnside followed Atkinson and adopted the following foundation requirements:

(1) [T]he blood tested is in fact that of defendant, the plaintiff, and the child, (2) the test results are based on reliable blood samples, (3) a chain of identification is established from the time the blood samples are taken to the time the samples are analyzed, and (4) the chain of identification is shown by personal knowledge that the questioned samples were subject to reliable, usual office procedures established for tracing blood samples between the time the samples were drawn and the time they were analyzed. Either direct or circumstantial evidence may be used in establishing this chain of identification.

Burnside, 171 Mich App at 425.

Subsequent amendments to the Paternity Act, however, provide that genetic testing results and the summary report must be served on the mother and the alleged father and that the summary report must be filed with the court. MCL 722.716(4). Objection to the summary report is waived unless it is made, in writing, within 14 calendar days after service of the report on the mother and the alleged father and it sets forth the specific basis for the objection. Id. The court may not schedule a trial on the issue of paternity until after the expiration of the 14-day period. If an objection is not filed, the court must admit the test results and summary report without requiring foundation testimony or other proof of authenticity or accuracy. Id. If an objection is filed within the 14-day period, the court must, on the motion of either party, hold a hearing to determine the admissibility of the summary report. The objecting party has the burden of proving by clear and convincing evidence by a qualified person that foundation testimony or other proof of authenticity or accuracy is necessary for admission of the result or summary report. Id.

Physician-patient privilege. Communications between a patient and a physician for purposes of a lawsuit and not for treatment or advice about treatment are not protected by the physician-patient privilege. Lindsay v Lipson, 367 Mich 1, 116 NW2d 60 (1962). The results of a blood test taken to determine paternity under the Paternity Act are thus not protected by the physician-patient privilege and may not be excluded from evidence on that basis. Osborn v Fabatz, 105 Mich App 450, 306 NW2d 319 (1981).

Confidentiality. MCL 722.716a provides for the confidentiality of the results of genetic paternity testing. If a man is found to be a child’s father under the Paternity Act, the laboratory may not keep the mother’s, child’s, or father’s testing materials for longer than the time period prescribed under national standards under which the laboratory is accredited. MCL 722.716a(2). If a man is found not to be a child’s father, the laboratory must destroy his testing material after its use in the action. Id. When the laboratory destroys genetic testing material, it must notify by certified mail the party whose material it destroyed. Id. All entities involved in the genetic testing must keep the information confidential and may not use it for any purpose other than the paternity suit. MCL 722.716a(3).

Pursuant to MCL 722.716(4), the laboratory conducting the test must prepare a two-part report: a summary report and the results of blood or tissue typing or a DNA identification profile. The summary report must be filed with the court. Id. Both the summary report and the test results must be served on the mother and the alleged father. Id. If no written objection is filed, the test results and summary report are admitted into evidence without any foundation requirement or other proof of authenticity or accuracy. Id. If the probability of paternity is 99 percent or higher, paternity is established. MCL 722.716(5). The content of the summary report is specified at MCL 722.711(i), including the probability of paternity, MCL 722.711(i)(vii), and whether the alleged father can or cannot be excluded as the biological father, MCL 722.711(i)(viii). Under MCL 722.716a(2), if the man is found not to be the child’s father, the contracting laboratory must destroy the material in the presence of a witness and in compliance with the Public Health Code’s requirements for the disposal of medical waste, MCL 333.13811. The laboratory must make and keep a written record of the destruction and have the individual who witnessed the destruction sign the record. MCL 722.716a(2).

I. Trial Procedure

1. Burden of Proof

§13.17   The plaintiff in a paternity action has the burden of proof by a preponderance of the evidence. Smith v Robbins, 91 Mich App 284, 283 NW2d 725 (1979); Huggins v Rahfeldt, 83 Mich App 740, 269 NW2d 286 (1978). The U.S. Supreme Court has found proof by a preponderance of the evidence in paternity cases to be constitutional. Rivera v Minnich, 483 US 574 (1987). The primary issue for the court is whether the putative father is the father of the child. To prove this, the plaintiff should establish the time and place, as near as possible, that the mother became pregnant, that the mother gave birth to a child on a specified date, that the child is a child born out of wedlock as defined by the Paternity Act, and that the man is the father of the child.

2. Party and Witness Testimony

§13.18   The evidence introduced at a paternity trial may include the testimony of the parties and their friends and relatives, with an emphasis on the parties’ statements and actions around the time of conception, during the mother’s pregnancy, and at the birth of the child.

Testimony regarding acts of sexual intercourse is relevant only if the acts occurred around the time of conception or if the testimony is offered to show the likelihood of a relationship at the time of conception. People v Leneschmidt, 260 Mich 671, 245 NW 544 (1932); People v Schilling, 110 Mich 412, 68 NW 233 (1896); People v Kaminsky, 73 Mich 637, 41 NW 833 (1889).

It is not necessary for the putative father to give an alibi notice although a court could order such a notice if requested by the mother. Skidmore v Czapiga, 82 Mich App 689, 267 NW2d 150 (1978). The mother’s reputation regarding chastity is not admissible. People v Wilson, 136 Mich 298, 99 NW 6 (1904).

A defendant in a paternity action may not refuse to give any testimony in a civil trial if the testimony sought does not tend to incriminate the witness. Larrabee v Sachs, 201 Mich App 107, 506 NW2d 2 (1993).

Expert testimony is generally offered to explain the test results. The expert must be accredited for paternity determinations by the American Association of Blood Banks or by some other nationally recognized scientific organization. MCL 722.716(2). The testimony of a medical doctor is sometimes needed to estimate the date of conception.

3. Admission of Genetic Test Results

§13.19   Genetic test results are admissible in evidence without foundation testimony or other proof of authenticity or accuracy, provided the procedures stated in MCL 722.716(4)–(5) are followed and an objection to the test results is not filed. MCL 722.718(4). If necessary, the chain of identification from the time that blood or tissue samples are taken to the time that they are analyzed may be established either directly or by circumstantial evidence.

4. Other Evidence to Offer in Court

§13.20   Many of the tests are expensive and require special skills to administer or to interpret, and there may be error in interpreting the results. For human leukocyte antigens tests, the blood should be analyzed 24 to 48 hours after it is drawn. The use of a reputable facility that specializes in this work is recommended.

The child may be exhibited to the court so that resemblance to the alleged father may be considered. People v Haab, 260 Mich 673, 245 NW2d 545 (1932). Lay testimony identifying resemblance is limited to individual features and specific traits shared by the putative father and the child. Schigur v Keck, 93 Mich App 763, 286 NW2d 917 (1979). A trial court may admit lay opinion testimony regarding the resemblance between a putative father and a child, but the resemblance between the putative father and his child by another woman is irrelevant. Burnside v Green, 171 Mich App 421, 431 NW2d 62 (1988).

Fraud or misrepresentation regarding a mother’s use of birth control is not a defense to or a mitigating factor in an action for child support under the Paternity Act. Parents have an obligation to support their children and the circumstances of a child’s conception do not affect the rule. Beard v Skipper, 182 Mich App 352, 451 NW2d 614 (1990); Faske v Bonanno, 137 Mich App 202, 357 NW2d 860 (1984).

J. Order of Filiation

1. In General

§13.21   If a determination of paternity is made, the court must enter an order of filiation under MCL 722.717(1). Regardless of which party commences an action under the Paternity Act, “an order of filiation … has the same effect, is subject to the same provisions, and is enforced in the same matter.” MCL 722.714(14). An order of filiation must be entered if the court makes a finding or a verdict determines that the man is the father, if the defendant mother or father acknowledges paternity, if a default judgment is entered against the appropriate person, or if genetic testing under MCL 722.716 determines that the man is the father. MCL 722.717(1). See form 13.4 for an order of filiation.

MCL 722.717(5) provides that an order of filiation supersedes an acknowledgment of parentage under the APA, MCL 722.1001 et seq.

If the court makes a determination of paternity and there is no dispute regarding custody, the court must include in the order of filiation specific provisions for the custody and parenting time of the child as provided in the Child Custody Act of 1970. MCL 722.717b. If the parties dispute custody or parenting time, the court must immediately enter a temporary order to establish custody and parenting time. An order of support must also be entered. Pending a hearing on the dispute, the court may also refer the matter to the Friend of the Court for a report and recommendation. In a dispute regarding custody or parenting time, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court under MCL 722.714 is not required to represent either party on that issue. MCL 722.717b.

2. Child Support

§13.22   The order of filiation must provide for the support of the child, reimbursement of the necessary medical expenses incurred in the child’s birth, and support for the period before the order was entered. MCL 722.717(2). Under some circumstances, that period could commence either on the date of birth of the child or the date of the filing of the complaint. MCL 722.717(2)(a)–(c). Support is defined in the Friend of the Court Act, MCL 552.502a(h), and the Support and Parenting Time Enforcement Act (SPTEA), MCL 552.602(ff). It may include payment for medical, dental, and other health care expenses; childcare expenses; and educational expenses. Id. The definition of support also includes the surcharge added to arrearages under MCL 552.603a. MCL 552.502a(h)(iii).

MCL 722.713, which made court-approved child support agreements in paternity actions nonmodifiable, was repealed effective June 1, 1997. The repealed provision of the Paternity Act, MCL 722.713, authorizing nonmodifiable child support agreements in the case of children born out of wedlock, was, however, later found to be constitutional. Crego v Coleman, 463 Mich 248, 615 NW2d 218 (2000), cert denied, 531 US 1074 (2001). The court held that child support agreements pursuant to MCL 722.713 may be valid and nonmodifiable under certain conditions:

(1) a paternity action was filed; (2) the child’s mother and putative father voluntarily entered into an agreement regarding child support, in lieu of a judicial determination of paternity; (3) the circuit court made a determination that the agreement secured “adequate provision” for the child’s needs; and (4) the agreement failed to include language preserving the right to modify support levels at a later time.

Crego, 463 Mich at 255 (footnote omitted). However, the repealed provision of the Paternity Act was not reinstated and there remains no statutory authority for nonmodifiable child support agreements in the Paternity Act.

In Macomb Cty Dep’t of Soc Servs v Westerman, 250 Mich App 372, 645 NW2d 710 (2002), the court held that a consent judgment entered in a prior paternity action was not a nonmodifiable settlement agreement under the former provisions of MCL 722.713 because the father acknowledged paternity and thus his child was entitled to modifiable support, just as any other child whose paternity has been established under the acknowledgment provisions of MCL 722.717(1)(b).

MCL 722.717(6) requires the party, attorney, or agency that secures the signing of an order of filiation to serve a copy of the filiation order on all parties to the action and to file proof of service with the court clerk within the time prescribed by court rule.

Every child support order the court enters must contain a provision for mandatory income withholding (see §§12.32 and 14.20) and it must provide that each party keep the Friend of the Court informed of certain employment and health care information. This information includes the name and address of the party’s current source of income, as defined in MCL 552.602(ff). This information also includes any health care coverage that is available to the party as an employment benefit or that is maintained by the party; the name of the health care coverage provider; the policy, certificate, or contract number; and the names and birth dates of the people for whom the party maintains health care coverage. MCL 552.605a(1)(b). Parents must also keep the Friend of the Court informed if they hold occupational, driver’s, or recreational licenses. MCL 552.603(7)(d). This requirement is part of a legislative enforcement procedure that permits the Friend of the Court to seek suspension of a parent’s occupational or driver’s license for parenting time order violations or for a failure to pay support. See §12.52 for a discussion of these enforcement provisions. Other provisions that must be in any child support order that is part of a judgment issued by a Michigan court include a provision regarding retroactive modification of child support and a notice of surcharge on past-due support payments. MCL 552.603(6)(a).

The court must order support in an amount determined by the Michigan Child Support Formula except when the court determines from the facts of the case that application of the formula would be unjust or inappropriate. If the court deviates from the Michigan Child Support Formula, it must set forth in writing or on the record (1) the support amount according to the formula, (2) how the order deviates from the formula, (3) the value of property or other support awarded in lieu of the payment of child support if applicable, and (4) the reasons the formula would be unjust or inappropriate in the case. MCL 552.605. The court must meet all of these requirements before it may order an amount of support that deviates from the formula. Id. For a case underscoring the requirements of this provision, see Ghidotti v Barber, 459 Mich 189, 586 NW2d 883 (1998) (reversing appeals court decision imputing public assistance benefits as income). The Paternity Act provides for postmajority support for children between the ages of 18 and 19½ who regularly attend high school full time, have a reasonable expectation of completing sufficient credits to graduate, and reside full time with the payee of support or at an institution. MCL 722.717(2); see also MCL 552.605b(4). See §§12.11–12.12 for a discussion of postmajority support.

In LME v ARS, 261 Mich App 273, 680 NW2d 902 (2004), the court held that the trial court erred in refusing to order the respondent father to pay child support because the child was conceived when the respondent was the victim of an uncharged act of criminal sexual conduct when he was 14 years old. Rather than focus on the criminal culpability of the petitioner mother or whether the respondent was, or could have been, a “consensual” participant in the act, the decision focused on the purpose of child support, which is to provide for the child’s needs. The court held that support is awarded without regard to either parent’s fault, citing Michigan’s public policy seeking to secure support for children.

3. Pregnancy Expenses

§13.23   MCL 722.712 permits the court to apportion the reasonable and necessary expenses of a mother’s pregnancy and birth between both parents based on the ability of each parent to pay and on any other relevant factor in the same manner as medical expenses are divided under the Michigan Child Support Formula. MCL 722.712(2). A parent may request an itemized bill for the expense before an apportionment is made. MCL 722.712(2)(d). If the pregnancy or a complication of the pregnancy has been determined in another proceeding to have resulted from a physical or sexual battery by a party to the case, the court must apportion those expenses to the perpetrator of the battery. MCL 722.712(4). If there is a request by the Office of Child Support or its designee for the reimbursement of a Medicaid-paid expense, the court must determine the amount of the expense that is reasonable and necessary and apportion this amount solely to the father and not the mother. MCL 722.712(3)(b). The court order apportioning the expenses must also include a provision that if the parents are married after the child is born, the father’s obligation to pay those expenses is abated, subject to reinstatement for good cause, such as the dissolution of the marriage. MCL 722.712(5). Orders for repayment of confinement and pregnancy expenses entered before October 1, 2004, are also subject to abatement if the father marries the mother after the birth of the child and provides documentation of this fact, whether the marriage occurred before or after October 1, 2004. Booker v Shannon, 285 Mich App 573, 776 NW2d 411 (2009).

4. Fees

§13.24   On entry of an order of filiation, the clerk of the court must collect a fee of $50 from the person against whom the order of filiation is entered. MCL 333.2891(9)(a). Under MCL 722.727, the court may assess the filing fee, judgment fee, and stenographer fee against the father in an order of filiation.

The former statutory authority to award the expenses of the proceedings, including attorney fees, was removed by the 2004 amendments to MCL 722.717(2). However, the court may still award attorney fees if the requesting party is able to establish an inability to pay for the action and that the other party is able to or that the attorney fees are incurred because the other party failed to comply with a previous order. MCR 3.206(D)(2)(a), (b). MCR 2.626 permits the award of attorney fees to also include the time and labor of legal assistants who contribute nonclerical support under the supervision of an attorney, provided the legal assistant meets the criteria set out in the Bylaws of the State Bar of Michigan art I, §6.

The statutory monthly Friend of the Court fee for support orders applies to paternity orders as well. MCL 600.2538(1).

The court may order the alleged father to repay the DHHS if it paid for the genetic testing and if the court declared paternity. MCL 722.716(3). Documentation of the testing expenses is admissible and constitutes prima facie evidence of the amount paid without third-party foundation testimony. Id.

5. Correction of Birth Records

§13.25   The Paternity Act provides that when an order of filiation is entered, the court clerk must notify the director of community health, who will then correct the child’s birth record to indicate the father’s name. MCL 722.717(4). As a practical matter, this notification may not be made unless one of the parties pays the required fee and files the appropriate form with the court clerk, who will send it to the DHHS. See form 13.5. In addition, if the father makes a written request, and the mother agrees or the court orders it, the child’s last name may be changed on the birth record. MCL 333.2824(4). However, no record may contain any explicit reference to the child being illegitimate. MCL 722.725.

The court clerk will charge a $9 fee on entry of an order of filiation, plus any fee imposed under MCL 333.2891 (currently $50). MCL 722.717(4). If an order of filiation or an acknowledgment of parentage is abrogated by a later judgment or court order, the clerk must immediately communicate that fact to the director of community health on a proper form. MCL 722.717(5). An order of filiation supersedes an acknowledgment of parentage. Id.

If the father is already listed on the birth certificate and the parties later marry, thereby legitimizing the child, the parties should file an application to amend the Michigan birth record due to legitimation with the Vital Records Office. See form 13.6. If a father is listed on a Michigan birth record because the child was conceived or born during the marriage but the child is later excluded as a child of the marriage, the parties should file an application to remove or replace the father on the birth record with the Vital Records Office. See form 13.7. If there was no father listed on the birth record initially, the parties should file an application to add a father. See form 13.8.

6. Modification of Custody, Support, and Parenting Time Provisions

§13.26   During the pendency of the action and after an order of filiation is entered, the court has continuing jurisdiction to provide for, change, and enforce provisions of the order relating to the custody, support, or parenting time of the child. The court also has jurisdiction, subject to limitations periods, to set aside an order of filiation under ROPA, MCL 722.1431 et seq. MCL 722.720(c). The court must adhere to the requirements of MCL 552.17 and .605 when the modification of a child support order deviates from the Michigan Child Support Formula. Burba v Burba, 461 Mich 637, 610 NW2d 873 (2000). Income disparity between the parents does not, by itself, warrant deviation from the Michigan Child Support Formula. Id. In Macomb Cty Dep’t of Soc Servs v Westerman, 250 Mich App 372, 645 NW2d 710 (2002), the court held that the consent judgment at issue was not a nonmodifiable settlement agreement because defendant acknowledged paternity and the court determined he was the father of the minor child. Therefore, the child was entitled to modifiable support, just as any other child whose paternity has been ascertained.

Any final order or judgment may be appealed by the parties or by a guardian ad litem appointed by the court for the child. MCL 722.724.

7. Enforcement of Support Obligations

§13.27   Orders of filiation are enforced under the SPTEA, MCL 552.601 et seq. MCL 722.717(3). In addition, the Paternity Act provides for posting a bond and securing liens on the defendant’s real property to ensure payment of the ordered child support. MCL 722.719.

The trial court “has continuing jurisdiction over proceedings brought under the Paternity Act,” which allows for continued enforcement of court-ordered child support. MCL 722.720(a), (b). In Parks v Niemiec, 325 Mich App 717, 926 NW2d 297 (2018), the court of appeals found that the statutory limitations period for enforcement of a 1992 child support order had not run while defendant was incarcerated and his support requirement was abated. While child support enforcement has a 10-year statutory limitation period under MCL 600.5809(4), the trial court had exercised its continuing jurisdiction through bench warrants, orders to show cause, and temporarily suspending defendant’s support obligation due to his incarceration. These actions tolled the statute of limitations and allowed the Department of Social Services (now DHHS) to enforce the child support order on behalf of plaintiff following defendant’s release from prison in December 2016.

In Walker v Henderson  (In re United Stationers Supply Co), 239 Mich App 496, 608 NW2d 105 (2000), the court upheld a finding of contempt against United Stationers Supply for failing to pay sums from worker’s compensation claims to the Wayne County Friend of the Court on behalf of one of its workers, a security guard under contract to United Stationers. The worker had failed to make timely child support payments and the circuit court had appointed the Friend of the Court as receiver of the funds. The company was served with the receivership order, but the funds were paid directly to the worker. After a show-cause hearing, the circuit court found the company in contempt of court. In affirming the lower court judgment, the appeals court concluded that the company was in civil contempt. Therefore, a finding of willful disobedience of the order appointing the receiver was not required. The court also held that service of the order by certified mail, return receipt requested, constituted proper notice.

Because paternity suits often involve people who do not have an extensive history together, it is important to get as much of the parties’ identifying information as possible when the order of filiation is entered, including Social Security number, physical description, job history, and names of relatives. This information can prove valuable if the mother must locate the father at a later date to enforce an order of child support or if the father must locate the mother to have parenting time with his child.

An order of filiation or a judicially approved settlement (under the now-repealed MCL 722.713) made before the father’s death is enforceable against his estate in the same manner as a divorce decree. MCL 722.712(9). In Crego v Coleman, 463 Mich 248, 255, 615 NW2d 218 (2000), cert denied, 531 US 1074 (2001), the supreme court held that child support agreements pursuant to MCL 722.713 may be valid and nonmodifiable under certain limited conditions. See §13.22.

In Macomb Cty Dep’t of Soc Servs v Westerman, 250 Mich App 372, 645 NW2d 710 (2002), the court held that the consent judgment at issue was not a nonmodifiable settlement agreement because defendant acknowledged paternity and because the court determined he was the father of the minor child. Therefore, the child was entitled to modifiable support, just as any other child whose paternity has been ascertained. Furthermore, an order of filiation or an order to pay child support is enforceable against the proceeds of an insurance policy on the father’s life. Easley v John Hancock Mut Life Ins Co, 403 Mich 521, 271 NW2d 513 (1978).

The Paternity Act, in addition to providing procedures for establishing paternity and for ordering the father to pay support, also provides that the mother of a child born out of wedlock is obligated to support the child if she “possesses property.” MCL 722.721(1). This can be interpreted to mean if she has the ability to pay. The court is required to apply the Michigan Child Support Formula in determining support or deviating from the formula per MCL 552.605, and the formula requires consideration of the mother’s income. MCL 552.605, 722.717(2); MCSF 2.01 et seq.

Footnotes

1 The authors gratefully acknowledge contributions to this chapter by prior authors and editors.

Forms and Exhibits

Form 13.01 Checklist to Establish Paternity
Form 13.02 Complaint Under the Paternity Act
Form 13.03 Order for Genetic Paternity Testing
Form 13.04 Order of Filiation and Support
Form 13.05 Notice of Order of Filiation
Form 13.06 Application to Amend Birth Record Due to Legitimation
Form 13.07 Application to Correct or Change a Michigan Birth Record
Form 13.08 Application to Add a Father on a Michigan Birth Record
Form 13.09 Complaint to Exclude a Child from a Marriage Under the Revocation of Paternity Act
Form 13.10 Affidavit of Parentage
Form 13.11 Notice of Intent to Claim Paternity
Form 13.12 Checklist to Revoke Acknowledgment of Parentage
Form 13.13 Checklist to Revoke a Default Order of Filiation
Form 13.14 Filing Requirements to Revoke Presumed Parentage
Form 13.15 Checklist to Determine Child Born out of Wedlock
Form 13.16 Checklist to Revoke Paternity Under the Genetic Parentage Act

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