May 15, 2014, Introduced by Reps. Hovey-Wright and Kurtz and referred to the Committee on Families, Children, and Seniors.
A bill to amend 2012 PA 159, entitled
"Revocation of paternity act,"
by amending sections 3, 5, and 13 (MCL 722.1433, 722.1435, and
722.1443) and by adding section 8.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. As used in this act:
(a)
(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.
(b) (2)
"Affiliated father" means
a man who has been
determined in a court to be the child's father.
(c) (3)
"Alleged father" means a
man who by his actions could
have fathered the child.
(d) "Genetic father" means a man whose paternity has been
determined solely through genetic testing.
(e) (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.
(f) (5)
"Order of filiation"
means a judicial order
establishing an affiliated father.
(g) (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 8 governs an action to determine that a genetic
father is not a child's father.
(3) (2)
Section 9 governs an action to set
aside an order of
filiation.
(4) (3)
Section 11 governs an action to
determine that a
presumed father is not a child's father.
Sec. 8. (1) The mother, the genetic father, an alleged father,
or a prosecuting attorney may file an action for an order
determining that a genetic father is not a child's father. 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 genetic
father was established as a child's father, whichever is later.
(2) An action under this section shall be supported by an
affidavit signed by the person filing the action that states facts
constituting 1 of the following:
(a) The genetic tests that established the man as a child's
father were inaccurate.
(b) The man's genetic material was not available to the
child's mother.
(c) A man who has DNA identical to the genetic father is the
child's father.
(3) If the court in an action 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 genetic father
is not the father of the child.
(4) If a genetic father has been reported to the state
registrar as a child's father, the clerk of the court shall forward
a copy of an order determining that the genetic father is not a
child's father to the state registrar. The state registrar shall
remove the genetic father as the child's father and may amend the
birth certificate as prescribed by the order.
(5) Whether an action filed 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.
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 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) Determine that a genetic father is not a child's father.
(c) (b)
Set aside an order of filiation or
a paternity order.
(d) (c)
Determine that a child was born out
of wedlock.
(e) (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, revoking an acknowledgment of parentage,
determining that a genetic father is not a child's father, 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
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 June 12,
2012 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
June 12, 2014, but is not available after that date.June 12,
2014.
(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
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.