Bill Text: MI SB0557 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Family law; paternity; revocation of paternity act; enact. Creates new act.
Spectrum: Moderate Partisan Bill (Republican 16-4)
Status: (Passed) 2012-06-14 - Assigned Pa 0159'12 With Immediate Effect [SB0557 Detail]
Download: Michigan-2011-SB0557-Engrossed.html
SB-0557, As Passed Senate, December 1, 2011
SUBSTITUTE FOR
SENATE BILL NO. 557
A bill to provide procedures to determine the paternity of
children in certain circumstances; to allow acknowledgments,
determinations, and judgments relating to paternity to be set aside
in certain circumstances; to provide for the powers and duties of
certain state and local governmental officers and entities; and to
provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"revocation of paternity act".
Sec. 3. (1) "Acknowledged father" means a man who has
affirmatively held himself out to be the child's father by
executing an acknowledgment of parentage under the acknowledgment
of parentage act, 1996 PA 305, MCL 722.1001 to 722.1013.
(2) "Affiliated father" means a man who has been determined in
a court to be the child's father.
(3) "Alleged father" means a man who by his actions could have
fathered the child.
(4) "Presumed father" means a man who is presumed to be the
child's father by virtue of his marriage to the child's mother at
the time of the child's conception or birth.
(5) "Order of filiation" means a judicial order establishing
an affiliated father.
(6) "Title IV-D case" means an action in which services are
provided under part D of title IV of the social security act, 42
USC 651 to 669b.
Sec. 5. (1) Section 7 governs an action to set aside an
acknowledgment of parentage.
(2) Section 9 governs an action to set aside an order of
filiation.
(3) Section 11 governs an action to determine that a presumed
father is not a child's father.
Sec. 7. (1) The mother, the acknowledged father, an alleged
father, or a prosecuting attorney may file an action for revocation
of an acknowledgment of parentage. An action under this section
shall be filed within 3 years after the child's birth or within 1
year after the date that the acknowledgment of parentage was
signed, whichever is later. The requirement that an action be filed
within 3 years after the child's birth or within 1 year after the
date the acknowledgment is signed does not apply to an action filed
on or before 1 year after the effective date of this act.
(2) An action for revocation under this section shall be
supported by an affidavit signed by the person filing the action
that states facts that constitute 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not
have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
(3) If the court in an action for revocation under this
section finds that an affidavit under subsection (2) is sufficient,
the court shall order blood or tissue typing or DNA identification
profiling as required under section 13(5). The person filing the
action has the burden of proving, by clear and convincing evidence,
that the acknowledged father is not the father of the child.
(4) The clerk of the court shall forward a copy of an order of
revocation entered under this section to the state registrar. The
state registrar shall vacate the acknowledgment of parentage and
may amend the birth certificate as prescribed by the order of
revocation.
(5) Whether an action for revocation under this section is
brought by a complaint in an original action or by a motion in an
existing action, the prosecuting attorney, an attorney appointed by
the county, or an attorney appointed by the court is not required
to represent any party regarding the action for revocation.
Sec. 9. (1) If a child has an affiliated father and paternity
was determined based on the affiliated father's failure to
participate in the court proceedings, the mother, an alleged
father, or the affiliated father may file a motion with the court
that made the determination to set aside the determination.
(2) A motion under this section shall be filed within 3 years
after the child's birth or within 1 year after the date of the
order of filiation, whichever is later. The requirement that an
action be filed within 3 years after the child's birth or within 1
year after the date of the order of filiation does not apply to an
action filed on or before 1 year after the effective date of this
act.
(3) If the court determines that a motion under this section
should be denied and the order of filiation not be set aside, the
court shall order the person who filed the motion to pay the
reasonable attorney fees and costs incurred by any other party
because of the motion.
Sec. 11. (1) If a child has a presumed father, a court may
determine that the child is born out of wedlock for the purpose of
establishing the child's paternity if an action is filed by the
child's mother and either of the following applies:
(a) All of the following apply:
(i) The mother identifies the alleged father by name in the
complaint or motion commencing the action.
(ii) The presumed father, the alleged father, and the child's
mother at some time mutually and openly acknowledged a biological
relationship between the alleged father and the child.
(iii) The action is filed within 3 years after the child's
birth. The requirement that an action be filed within 3 years after
the child's birth does not apply to an action filed on or before 1
year after the effective date of this act.
(iv) Either the court determines the child's paternity or the
child's paternity will be established under the law of this state
or another jurisdiction if the child is determined to be born out
of wedlock.
(b) All of the following apply:
(i) The mother identifies the alleged father by name in the
complaint or motion commencing the action.
(ii) Either of the following applies:
(A) The presumed father, having the ability to support or
assist in supporting the child, has failed or neglected, without
good cause, to provide regular and substantial support for the
child for a period of 2 years or more before the filing of the
action or, if a support order has been entered, has failed to
substantially comply with the order for a period of 2 years or more
before the filing of the action.
(B) The child is less than 3 years of age and the presumed
father lives separately and apart from the child. The requirement
that the child is less than 3 years of age at the time an action is
filed does not apply to an action filed on or before 1 year after
the effective date of this act.
(iii) Either the court determines the child's paternity or the
child's paternity will be established under the law of this state
or another jurisdiction if the child is determined to be born out
of wedlock.
(2) If a child has a presumed father, a court may determine
that the child is born out of wedlock for the purpose of
establishing the child's paternity if an action is filed by the
presumed father within 3 years after the child's birth or if the
presumed father raises the issue in a divorce action between the
presumed father and the mother. The requirement that an action be
filed within 3 years after the child's birth does not apply to an
action filed on or before 1 year after the effective date of this
act.
(3) If a child has a presumed father, a court may determine
that the child is born out of wedlock for the purpose of
establishing the child's paternity if an action is filed by an
alleged father and any of the following applies:
(a) All of the following apply:
(i) The alleged father did not know or have reason to know that
the mother was married at the time of conception.
(ii) The presumed father, the alleged father, and the child's
mother at some time mutually and openly acknowledged a biological
relationship between the alleged father and the child.
(iii) The action is filed within 3 years after the child's
birth. The requirement that an action be filed within 3 years after
the child's birth does not apply to an action filed on or before 1
year after the effective date of this act.
(iv) Either the court determines the child's paternity or the
child's paternity will be established under the law of this state
or another jurisdiction if the child is determined to be born out
of wedlock.
(b) All of the following apply:
(i) The alleged father did not know or have reason to know that
the mother was married at the time of conception.
(ii) Either of the following applies:
(A) The presumed father, having the ability to support or
assist in supporting the child, has failed or neglected, without
good cause, to provide regular and substantial support for the
child for a period of 2 years or more before the filing of the
action or, if a support order has been entered, has failed to
substantially comply with the order for a period of 2 years or more
before the filing of the action.
(B) The child is less than 3 years of age and the presumed
father lives separately and apart from the child. The requirement
that the child is less than 3 years of age at the time an action is
filed does not apply to an action filed on or before 1 year after
the effective date of this act.
(iii) Either the court determines the child's paternity or the
child's paternity will be established under the law of this state
or another jurisdiction if the child is determined to be born out
of wedlock.
(c) Both of the following apply:
(i) The mother was not married at the time of conception.
(ii) The action is filed within 3 years after the child's
birth. The requirement that an action be filed within 3 years after
the child's birth does not apply to an action filed on or before 1
year after the effective date of this act.
(4) If a child has a presumed father and the child is being
supported in whole or in part by public assistance, a court may
determine that the child is born out of wedlock for the purpose of
establishing the child's paternity if an action is filed by the
department of human services and both of the following apply:
(a) Either of the following applies:
(i) The presumed father, having the ability to support or
assist in supporting the child, has failed or neglected, without
good cause, to provide regular and substantial support for the
child for a period of 2 years or more before the filing of the
action or, if a support order has been entered, has failed to
substantially comply with the order for a period of 2 years or more
before the filing of the action.
(ii) The child is less than 3 years of age and the presumed
father lives separately and apart from the child. The requirement
that the child is less than 3 years of age at the time an action is
filed does not apply to an action filed on or before 1 year after
the effective date of this act.
(b) Either the court determines the child's paternity or the
child's paternity will be established under the law of this state
or another jurisdiction if the child is determined to be born out
of wedlock.
(5) An action under this section may be brought by a complaint
filed in an original action or by a motion filed in an existing
action, as appropriate under this act and rules adopted by the
supreme court.
Sec. 13. (1) An original action under this act shall be filed
in the circuit court for the county in which the mother or the
child resides or, if neither the mother nor the child reside in
this state, in the circuit court for the county in which the child
was born. If an action for the support, custody, or parenting time
of the child exists at any stage of the proceedings in a circuit
court of this state, an action under this act shall be brought by
motion in the existing case under rules adopted by the supreme
court.
(2) In an action filed under this act, the court may do any of
the following:
(a) Revoke an acknowledgment of parentage.
(b) Set aside an order of filiation or a paternity order.
(c) Determine that a child was born out of wedlock.
(d) Make a determination of paternity and enter an order of
filiation as provided for under section 7 of the paternity act,
1956 PA 205, MCL 722.717.
(3) A judgment entered under this act does not relieve a man
from a child support obligation for the child or the child's mother
that was incurred before the action was filed or prevent a person
from seeking relief under applicable court rules to vacate or set
aside a judgment.
(4) A court may refuse to enter an order setting aside a
paternity determination or determining that a child is born out of
wedlock if the court finds by clear and convincing evidence that
the order would not be in the best interests of the child. The
court shall state its reasons for refusing to enter an order on the
record. The court may consider the following factors:
(a) Whether the presumed father is estopped from denying
parentage because of his conduct.
(b) The length of time the presumed father was on notice that
he might not be the child's father.
(c) The facts surrounding the presumed father's discovery that
he might not be the child's father.
(d) The nature of the relationship between the child and the
presumed or alleged father.
(e) The age of the child.
(f) The harm that may result to the child.
(g) Other factors that may affect the equities arising from
the disruption of the father-child relationship.
(h) Any other factor that the court determines appropriate to
consider.
(5) The court shall order the parties to an action or motion
under this act to participate in and pay for blood or tissue typing
or DNA identification profiling to assist the court in making a
determination under this act. Blood or tissue typing or DNA
identification profiling shall be conducted in accordance with
section 6 of the paternity act, 1956 PA 205, MCL 722.716. The
results of blood or tissue typing or DNA identification profiling
are not binding on a court in making a determination under this
act.
(6) If the case is a title IV-D case, the court may appoint an
attorney approved by the office of child support to represent this
state's interests with respect to an action or a motion under this
act. The court may appoint a guardian ad litem to represent the
child's interests with respect to the action or motion.
(7) A court shall not issue an order under this act that sets
aside a judgment or determination of a court or administrative
agency of another state, even if the judgment or determination is
being enforced in this state.
(8) This act does not establish a basis for termination of an
adoption and does not affect any obligation of an adoptive parent
to an adoptive child.
(9) This act does not establish a basis for vacating a
judgment establishing paternity of a child conceived under a
surrogate parentage contract as that term is defined in section 3
of the surrogate parenting act, 1988 PA 199, MCL 722.853.
(10) A common law action that was available before the
effective date of this act to set aside a paternity determination
or to determine that a child is born out of wedlock remains
available until 2 years after the effective date of this act but is
not available after that date.
(11) A court, in its discretion, may order a person who files
an action or motion under this act to post an amount of money with
the court, obtain a surety, or provide other assurances that in the
court's determination will secure the costs of the action and
attorney fees if the person does not prevail. The court, in its
discretion, may order a nonprevailing party to pay the attorney
fees and costs of a prevailing party.
(12) A court may extend the time for filing an action or
motion under this act. A request for extension shall be supported
by an affidavit signed by the person requesting the extension
stating facts that the person satisfied all the requirements for
filing an action or motion under this act but did not file the
action or motion within the time allowed under this act because of
1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not
have been found earlier.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress.
(13) If the court finds that an affidavit under subsection
(12) is sufficient, the court may allow the action or motion to be
filed and take other action the court considers appropriate. The
party filing the request to extend the time for filing has the
burden of proving, by clear and convincing evidence, that granting
relief under this act will not be against the best interests of the
child considering the equities of the case.
(14) An alleged father may not bring an action under this act
if the child is conceived as the result of acts for which the
alleged 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.
Sec. 15. If an action is brought by an alleged father who
proves by clear and convincing evidence that he is the child's
father, the court may make a determination of paternity and enter
an order of filiation as provided for under section 7 of the
paternity act, 1956 PA 205, MCL 722.717.
