SB-0858, As Passed House, May 25, 2016

SUBSTITUTE FOR

SENATE BILL NO. 858

A bill to amend 2012 PA 159, entitled

"Revocation of paternity act,"

by amending sections 13 and 15 (MCL 722.1443 and 722.1445), section

13 as amended by 2014 PA 374.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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.

(d) Determine that a child was born out of wedlock.

(e) 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.

(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, or that is inconsistent with 28 USC

1738A or 28 USC 1738B.

(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 June 12,

2012 to set aside a paternity determination or to determine that a

child is born out of wedlock remains available until June 12, 2014,

but is not available after June 12, 2014.

(11) A Except for an action filed under section 15(2), 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, including a mother who is a

nonprevailing party under section 15(2), 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.

(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. (1) 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.

(2) If an action is brought by a mother who, after a fact-

finding hearing, proves by clear and convincing evidence that the

child was conceived as a result of nonconsensual sexual

penetration, the court shall do 1 of the following:

(a) Revoke an acknowledgment of parentage for an acknowledged

father.

(b) Determine that a genetic father is not the child's father.

(d) Make a determination of paternity regarding an alleged

father and enter an order of revocation of paternity for that

alleged father.

(3) Subsection (2) does not apply if, after the date of the

alleged nonconsensual sexual penetration described in subsection

(2), the biological parents cohabit and establish a mutual

custodial environment for the child.

(4) As used in this section, "sexual penetration" means that

term as defined in section 520a of the Michigan penal code, 1931 PA

328, MCL 750.520a.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.