3.16​Determine Genetic Father is Not Child’s Father

MCL 722.1443(2)(b) permits the court to “[d]etermine that a genetic father is not a child’s father.” MCL 722.1438 governs these actions. MCL 722.1435(2).

“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.” MCL 722.1438(1). However, “[a]n alleged father may not bring an action under [the Revocation of Parentage Act] if the child is conceived as the result of acts for which the alleged father was convicted of criminal sexual conduct under . . . MCL 750.520b to [MCL] 750.520e.” MCL 722.1443(16).

A.​Initiating Request for Determining Genetic Father is Not the Child’s Father

An original action filed under the Revocation of Parentage Act seeking a determination that the genetic father is not the child’s father must “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 . . . [MCL 712A.2(b)] is pending in a circuit court of this state, an action under this act shall be brought by motion in the existing case under [the Michigan Court Rules].”⁸¹ MCL 722.1443(1).

B.​Time Requirements

An action for court determination that a genetic father is not the child’s father under MCL 722.1438 must “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.” MCL 722.1438(1).

The court may extend the time for filing an action or motion if the request for extension is “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 [the Revocation of Parentage Act] but did not file the action or motion within the time allowed under [the Revocation of Parentage 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.” MCL 722.1443(14).

“If the court finds that an affidavit under [MCL 722.1443(14)] 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 [the Revocation of Parentage Act] will not be against the best interests of the child considering the equities of the case.” MCL 722.1443(15).

C.​Affidavit Requirement

“An action under [MCL 722.1438] 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.” MCL 722.1438(2).

D.​Ordering Genetic Testing

“If the court in an action under [MCL 722.1438] finds that an affidavit under [MCL 722.1438(2)] is sufficient, the court shall order blood or tissue typing or DNA identification profiling as required under [MCL 722.1443(5)]. . . . .The court may order the person filing the action to repay the cost of the genetic test to the state.” MCL 722.1438(3).

MCL 722.1443(6) requires the court to “order the parties to an action or motion under [the Revocation of Parentage Act] to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under [the Revocation of Parentage Act]. Blood or tissue typing or DNA identification profiling shall be conducted in accordance with . . . MCL 722.716.^[82] The results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under [the Revocation of Parentage Act]” MCL 722.1443(6).

E.​Representation

1.​No Right to Representation

“Whether an action filed under [MCL 722.1438] 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.” MCL 722.1438(5).

2.​Court-ordered Representation

“If the case is a [T]itle 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 motion under [the Revocation of Parentage Act]. The court may appoint a guardian ad litem to represent the child’s interests with respect to the action or motion.” MCL 722.1443(8).

F.​Burden of Proof

“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.” MCL 722.1438(3).

G.​Costs and Fees

“Except for an action filed under [MCL 722.1445(2) (revocation of parentage action filed for a child conceived as a result of nonconsensual sexual penetration)], a court, in its discretion, may order a party who files an action or motion under [the Revocation of Parentage 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 party does not prevail. The court, in its discretion, may order a nonprevailing party, including a mother who is a nonprevailing party under [MCL 722.1445(2)], to pay the reasonable attorney fees and costs of a prevailing party.” MCL 722.1443(13).

H.​Court Determination

1.​Refusing to Determine Genetic Father is Not the Child’s Father

“A court may refuse to enter an order . . . determining that a genetic father is not a child’s father . . . if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4). MCL 722.1443(4) sets out factors the court may consider, including in relevant part, “[t]he child’s age”; “[t]he harm that may result to the child”; “[o]ther factors that may affect the equities arising from the disruption of the parent-child relationship”; and “[a]ny other factor that the court determines appropriate to consider.”

“The court must state its reasons for refusing to enter an order [determining that a genetic father is not a child’s father] on the record.” MCL 722.1443(4). See Jones v Jones, 320 Mich App 248, 256-257 (2017) (where “the trial court ultimately did alter the presumed father’s status, the court . . . was not required to express its particular reasons”; explicit findings with respect to specific best-interest factors under MCL 722.1443(4) are required “to be made on the record [only] when [the court] refuses to enter the order, i.e., when it does not alter the presumed father’s status”).

2.​Determining Genetic Father is Not the Child’s Father

“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.” MCL 722.1438(4).

“A judgment entered under [the Revocation of Parentage Act] does not relieve an individual from a support obligation for the child or the child’s parent 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.” MCL 722.1443(3). “MCL 722.1443(3) allows a person who has obtained a judgment under the [Revocation of Parentage Act⁸³] to seek relief from prior child support orders under MCR 2.612.” Adler v Dormio, 309 Mich App 702, 709 (2015) (noting that “MCL 722.1443(3) specifically allows a defendant to resort to applicable court rules to seek relief from prior support orders[, and that] MCR 2.612(C)(1) expressly provides for such relief and does not limit the type of orders from which relief may be sought”).

I.​Child Conceived After Nonconsensual Sexual Penetration

The court must “[d]etermine that a genetic father is not the child’s father,” if a mother brings an action under the Revocation of Parentage Act and “after a fact-finding hearing, proves by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration[.]” MCL 722.1445(2)(b).

MCL 722.1445(2) “does not apply if, after the date of the alleged nonconsensual sexual penetration described in [MCL 722.1445(2)], the biological parents cohabit and establish a mutual custodial environment for the child.” MCL 722.1445(3).

The court may also order “a mother who is a nonprevailing party under [MCL 722.1445(2)] to pay the reasonable attorney fees and costs of [the] prevailing party.” MCL 722.1443(13).

J.​Standard of Review

The Court of Appeals “reviews a trial court’s factual findings in proceedings under the [Revocation of Parentage Act⁸⁴] for clear error. ‘The trial court has committed clear error when [the] Court [of Appeals] is definitely and firmly convinced that it made a mistake.’” Jones v Jones, 320 Mich App 248, 253 (2017), quoting Demski v Petlick, 309 Mich App 404, 431 (2015) (quotation marks and citation omitted in original).

The Court of Appeals “reviews de novo the interpretation and application of statutory provisions.” Jones, 320 Mich App at 253, citing Parks v Parks, 304 Mich App 232, 237 (2014).