SB-0557, As Passed House, May 24, 2012

 

 

 

 

 

 

 

 

 

 

 

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


Senate Bill No. 557 (S-2) as amended May 23, 2012

 

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 [an action for divorce or separate

 maintenance] 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


Senate Bill No. 557 (S-2) as amended May 23, 2012

 

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 [or if an action under section 2(b) of chapter XIIA

 of the probate code of 1939, 1939 PA 288, MCL 712A.2, is pending 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 [      ] 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 [                       ] 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


Senate Bill No. 557 (S-2) as amended May 23, 2012

 

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 [reasonable]

 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


Senate Bill No. 557 (S-2) as amended May 23, 2012

 

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.

[(15) An action may not be brought under this act if the child is under court jurisdiction under chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.1 to 712A.32, and a petition has been filed to terminate the parental rights to the child, unless the court having jurisdiction under chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.1 to 712A.32, first finds that allowing an action under this act would be in the best interests of the child.]

     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.