Bill Text: MI SB0197 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Family law; paternity; circumstances under which putative father may sue to establish paternity of a child born to a married woman; establish. Amends secs. 1, 4 & 6 of 1956 PA 205 (MCL 722.711 et seq.).

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Introduced - Dead) 2009-02-05 - Referred To Committee On Families And Human Services [SB0197 Detail]

Download: Michigan-2009-SB0197-Introduced.html

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SENATE BILL No. 197

 

 

February 5, 2009, Introduced by Senators McMANUS, PAPPAGEORGE, GARCIA and BASHAM and referred to the Committee on Families and Human Services.

 

 

 

     A bill to amend 1956 PA 205, entitled

 

"The paternity act,"

 

by amending sections 1, 4, and 6 (MCL 722.711, 722.714, and

 

722.716), sections 1 and 6 as amended by 2000 PA 31 and section 4

 

as amended by 1998 PA 113.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. As used in this act:

 

     (a) "Child" means a child born out of wedlock.

 

     (b) (a) "Child born out of wedlock" means a any of the

 

following:

 

     (i) 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

 

     (ii) A child that whom the court has determined, before an

 

action filed under this act, to be a child born or conceived during

 

a marriage but not to be the issue of that marriage.

 

     (b) "Child" means a child born out of wedlock.

 

     (c) "Mother" means the mother of a child born out of wedlock.

 

     (iii) A child whom the court determines, during the pendency of

 

an action filed under this act, to be a child born or conceived

 

during a marriage but not to be the issue of that marriage.

 

     (c) (d) "Court" means the circuit court.

 

     (d) (e) "DNA identification profile" means the results of the

 

DNA identification profiling of genetic testing material.

 

     (e) (f) "DNA identification profiling" means a validated

 

scientific method of analyzing components of deoxyribonucleic acid

 

molecules in a sample of genetic testing material to identify the

 

pattern of the components' chemical structure that is unique to the

 

individual.

 

     (g) "State disbursement unit" or "SDU" means the entity

 

established in section 6 of the office of child support act, 1971

 

PA 174, MCL 400.236.

 

     (f) (h) "Genetic testing material" means a sample of an

 

individual's blood, saliva, or tissue collected from the individual

 

that is used for genetic paternity testing conducted under this

 

act.

 

     (g) "Mother" means the mother of a child born out of wedlock.

 

     (h) "State disbursement unit" or "SDU" means the entity

 

established in section 6 of the office of child support act, 1971

 

PA 174, MCL 400.236.

 

     (i) "Summary report" means a written summary of the DNA

 

identification profile that includes only the following

 

information:

 

     (i) The court case number, if applicable, the laboratory case

 

number or identification number, and the family independence agency

 

department of human services case number.

 

     (ii) The mother's name and race.

 

     (iii) The child's name.

 

     (iv) The alleged father's name and race.

 

     (v) The collection dates and identification numbers of the

 

genetic testing material.

 

     (vi) The cumulative paternity index.

 

     (vii) The probability of paternity.

 

     (viii) The conclusion as to whether the alleged father can or

 

cannot be excluded as the biological father.

 

     (ix) The name, address, and telephone number of the contracting

 

laboratory.

 

     (x) The name of the individual certifying the report.

 

     Sec. 4. (1) An action under this act shall be brought in the

 

circuit court by the any of the following:

 

     (a) The mother. , the father, a

 

     (b) A child who became 18 years of age after August 15, 1984

 

and before June 2, 1986. , or the family independence agency

 

     (c) The department of human services as provided in this act.

 

     (d) An individual named as the child's father on a certificate

 

of birth or the child's presumed father.

 

     (e) A putative father. However, a putative father may not

 

bring an action if the child is conceived as the result of acts for

 

which the putative father was convicted of criminal sexual conduct

 

under sections 520b to 520e of the Michigan penal code, 1931 PA

 

328, MCL 750.520b to 750.520e.

 

     (2) If the mother was married at any time from the conception

 

to the date of birth of the child, a putative father may not bring

 

an action under this act unless the action is commenced within 1

 

year after the birth of the child and 1 or more of the following

 

apply:

 

     (a) The mother and the putative father mutually and openly

 

acknowledge a biological relationship between the putative father

 

and the child by doing all of the following:

 

     (i) Filing an affidavit with the court stating that the

 

putative father is the biological father of the child.

 

     (ii) Filing with the court the results of blood or tissue

 

typing or DNA identification profiling that establish that the

 

probability of paternity by the putative father is 99% or higher.

 

     (iii) Notifying each individual described in subsection (1)(d)

 

that the affidavit and results have been filed.

 

     (b) All of the following apply:

 

     (i) The mother was separated from her husband under an order or

 

judgment entered in an action for separate maintenance brought

 

under section 7 of 1846 RS 84, MCL 552.7, or not married at or

 

around the time of conception.

 

     (ii) The putative father files an affidavit with the court

 

stating that he is the biological father of the child and that he

 

consents to DNA identification profiling.

 

     (iii) The putative father notifies each individual described in

 

subsection (1)(d) that he has filed the affidavit.

 

     (c) All of the following apply:

 

     (i) The mother acknowledges in writing a biological

 

relationship between the putative father and the child.

 

     (ii) The putative father demonstrates to the court that he has

 

had parenting time with the child by agreement with the mother.

 

     (iii) The putative father files an affidavit with the court

 

stating that he is the biological father of the child and that he

 

consents to DNA identification profiling.

 

     (iv) The putative father notifies each individual described in

 

subsection (1)(d) that he has filed the affidavit.

 

     (3) A judgment in an action under subsection (2) does not

 

relieve an individual described in subsection (1)(d) from any child

 

support obligation incurred before entry of the judgment.

 

     (4) The Michigan court rules for civil actions apply to all

 

proceedings under this act. A complaint shall be filed in the

 

county where the mother or child resides. If both the mother and

 

child reside outside of this state, then the complaint shall be

 

filed in the county where the putative father resides or is found.

 

The fact that the child was conceived or born outside of this state

 

is not a bar to entering a complaint against the putative father.

 

     (5) (2) An action to determine paternity shall not be brought

 

under this act if the child's father acknowledges paternity under

 

the acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to

 

722.1013, or if the child's paternity is established under the law

 

of another state.

 

     (6) (3) An Except as otherwise provided in this act, an action

 

under this act may be commenced during the pregnancy of the child's

 

mother or at any time before the child reaches 18 years of age. For

 

a child who became 18 years of age after August 15, 1984 and before

 

June 2, 1986, an action under this act may be commenced before

 

January 1, 1995. This subsection applies regardless of whether the

 

cause of action accrued before June 1, 1986 and regardless of

 

whether the cause of action was barred under this subsection before

 

June 1, 1986. A summons issued under this section shall be in the

 

form the court determines and shall be served in the same manner as

 

is provided by court rules for the service of process in civil

 

actions.

 

     (7) (4) If the county family independence agency office of the

 

department of human services of the county in which the mother or

 

alleged father resides first determines that she or he has physical

 

possession of the child and is eligible for public assistance or

 

without means to employ an attorney; if the family independence

 

agency department of human services is the complainant; of or if

 

the mother, alleged father, or child is receiving services under

 

part D of title IV of the social security act, 42 U.S.C. USC 651 to

 

667 669b, then the prosecuting attorney or an attorney employed by

 

the county under section 1 of 1941 PA 15, MCL 49.71, shall initiate

 

and conduct proceedings under this act. This subsection does not

 

apply to an action filed under subsection (2). The prosecuting

 

attorney or an attorney employed by the county shall utilize the

 

child support formula developed under section 19 of the friend of

 

the court act, 1982 PA 294, MCL 552.519, as a guideline in

 

petitioning for child support. A complaint filed under this act

 

shall be verified by oath or affirmation.

 

     (8) (5) The party filing the a complaint under this act shall

 

name the person believed to be the father of the child and state in

 

the complaint the time and place, as near as possible, when and

 

where the mother became pregnant. If the family independence agency

 

department of human services is the plaintiff, the required facts

 

shall be stated upon information and belief.

 

     (9) (6) Upon the filing of a complaint under this act, the

 

court shall issue a summons against the named defendant. If the

 

defendant does not file and serve a responsive pleading as required

 

by the court rules, the court may enter a default judgment. Neither

 

party is required to testify before entry of a default judgment in

 

a proceeding under this act.

 

     (10) (7) If, after service of process, the parties fail to

 

consent to an order naming the man as the child's father as

 

provided in this act within the time permitted for a responsive

 

pleading, then the family independence agency department of human

 

services or its designee may file and serve both the mother and the

 

alleged father with a notice requiring that the mother, alleged

 

father, and child appear for genetic paternity testing as provided

 

in section 6.

 

     (11) (8) If the mother, alleged father, or child does not

 

appear for genetic paternity testing as provided in subsection (7)

 

(10), then the family independence agency department of human

 

services or its designee may apply to the court for an order

 

compelling genetic paternity tests as provided in section 6 or may

 

seek other relief as permitted by statute or court rule.

 

     (12) (9) It is unnecessary in any proceedings under this act

 

commenced by or against a minor to have a next friend or guardian

 

ad litem appointed for the minor unless required by the circuit

 

judge. A minor may prosecute or defend any proceedings in the same

 

manner and with the same effect as if he or she were of legal age.

 

     (13) (10) If a child born out of wedlock is being supported in

 

whole or in part by public assistance, including medical

 

assistance, the family independence agency department of human

 

services may file a complaint on behalf of the child in the circuit

 

court in the county in which the child resides. The mother or

 

alleged father of the child shall be made a party plaintiff and

 

notified of the hearing on the complaint by summons. The complaint

 

made by the family independence agency department of human services

 

shall be verified by the director of the family independence agency

 

department of human services, or his or her designated

 

representative, or by the director of the county family

 

independence agency office of the department of human services of

 

the county in which an action is brought, or the county director's

 

designated representative.

 

     (14) (11) 1986 PA 107, which added this subsection, does not

 

affect the rights of an indigent defendant in proceedings under

 

this act as established by decisions of the courts of this state

 

before June 1, 1986.

 

     (15) (12) If a determination of paternity is made under this

 

act, the court may enter an order of filiation as provided in

 

section 7. Regardless of who commences an action under this act, an

 

order of filiation entered under this act has the same effect, is

 

subject to the same provisions, and is enforced in the same manner

 

as an order of filiation entered on complaint of the mother or

 

father.

 

     Sec. 6. (1) In a proceeding under this act before trial, the

 

court, upon on application made by or on behalf of either party, or

 

on its own motion, shall order that the mother, child, and alleged

 

father submit to blood or tissue typing determinations, which may

 

include, but are not limited to, determinations of red cell

 

antigens, red cell isoenzymes, human leukocyte antigens, serum

 

proteins, or DNA identification profiling, to determine whether the

 

alleged father is likely to be, or is not, the father of the child.

 

If the court orders a blood or tissue typing or DNA identification

 

profiling to be conducted and a party refuses to submit to the

 

typing or DNA identification profiling, in addition to any other

 

remedies available, the court may do either of the following:

 

     (a) Enter a default judgment at the request of the appropriate

 

party.

 

     (b) If a trial is held, allow the disclosure of the fact of

 

the refusal unless good cause is shown for not disclosing the fact

 

of refusal.

 

     (2) A blood or tissue typing or DNA identification profiling

 

shall be conducted by a person accredited for paternity

 

determinations by a nationally recognized scientific organization,

 

including, but not limited to, the American association of blood

 

banks.

 

     (3) The court shall fix the compensation of an expert at a

 

reasonable amount and may direct the compensation to be paid by the

 

county, if section 4(7) is applicable, or by any other party to the

 

case, or by both in the proportions and at the times the court

 

prescribes. Before blood or tissue typing or DNA identification

 

profiling is conducted, the court may order a part or all of the

 

compensation paid in advance. If the family independence agency

 

department of human services paid for the genetic testing expenses,

 

the court may order repayment by the alleged father if the court

 

declares paternity. In an action filed under section 4(2), the

 

putative father shall pay for the genetic testing expenses.

 

Documentation of the genetic testing expenses is admissible as

 

evidence of the amount, which evidence constitutes prima facie

 

evidence of the amount of those expenses without third party

 

foundation testimony.

 

     (4) Subject to subsection (5), the result of blood or tissue

 

typing or a DNA identification profile and the summary report shall

 

be served on the mother and alleged father. The summary report

 

shall be filed with the court. Objection to the DNA identification

 

profile or summary report is waived unless made in writing, setting

 

forth the specific basis for the objection, within 14 calendar days

 

after service on the mother and alleged father. The court shall 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 shall admit in proceedings under this act the result of the

 

blood or tissue typing or the DNA identification profile and the

 

summary report without requiring foundation testimony or other

 

proof of authenticity or accuracy. If an objection is filed within

 

the 14-day period, on the motion of either party, the court shall

 

hold a hearing to determine the admissibility of the DNA

 

identification profile or summary report. The objecting party has

 

the burden of proving by clear and convincing evidence by a

 

qualified person described in subsection (2) that foundation

 

testimony or other proof of authenticity or accuracy is necessary

 

for admission of the DNA identification profile or summary report.

 

     (5) If the probability of paternity determined by the

 

qualified person described in subsection (2) conducting the blood

 

or tissue typing or DNA identification profiling is 99% or higher,

 

and the DNA identification profile and summary report are

 

admissible as provided in subsection (4), paternity is presumed. If

 

the results of the analysis of genetic testing material from 2 or

 

more persons indicate a probability of paternity greater than 99%,

 

the contracting laboratory shall conduct additional genetic

 

paternity testing until all but 1 of the putative fathers is

 

eliminated, unless the dispute involves 2 or more putative fathers

 

who have identical DNA.

 

     (6) Upon the establishment of the presumption of paternity as

 

provided in subsection (5), either party may move for summary

 

disposition under the court rules. This section does not abrogate

 

the right of either party to child support from the date of birth

 

of the child if applicable under section 7.