Chapter 6: Establishing Paternity For Child Protective Proceedings

6.1   Identifying a Child’s Father       6-1

6.2   Authorities Governing Paternity and Parental Rights       6-2

6.3   Types of Fathers       6-3

6.4   Natural Fathers Under the Equitable-Parent Doctrine       6-5

6.5   Putative Fathers/Alleged Biological Fathers/Natural Fathers and
Child Protective Proceedings       6-7

6.6   Revocation of Parentage Act       6-10

6.7   Presumed Parent and the Revocation of Parentage Act       6-16

6.8   Affiliated Fathers and the Revocation of Parentage Act       6-19

6.9   Acknowledged Parents and the Revocation of Parentage Act        6-23

6.10   Genetic Fathers and the Revocation of Parentage Act       6-27

6.11   Paternity and the Adoption Code       6-32

6.12   Determining Paternity and Maternity Under the Safe Delivery of Newborns Law       6-34

6.13   The Uniform Interstate Family Support Act (UIFSA)       6-37

6.1​Identifying a Child’s Father

Efforts to include all parents involved in a child’s life should begin at the very first hearing in child protective proceedings. National Council of Juvenile and Family Court Judges, Enhanced Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, p 82. Early identification, location, and engagement of the father are critical—”there is no paternal side of the family until a determination is made about who the father actually is.” Id. “Timely resolution of paternity issues is both in the best interests of the child and essential to avoiding delays at subsequent points in the court process. The court must ensure that the efforts of the child welfare agency are thorough and diligent in locating and involving all legal and putative parents.” Id. See also National Council of Juvenile and Family Court Judges, Adoption and Permanency Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, p 10; Michigan Absent Parent Protocol: Identifying, Locating, and Notifying Absent Parents in Child Protective Proceedings, p 3. The Absent Parent Protocol is a useful tool developed by the State Court Administrative Office (SCAO) to guide a court through the procedures of finding and notifying absent/noncustodial parents during a child protective proceeding.¹ 

6.2​Authorities Governing Paternity and Parental Rights

A.​Court Rules and the Juvenile Code (Child Protective Proceedings)

Practice and procedure in all cases filed in the family division of circuit court under the Juvenile Code, MCL 712A.1 et seq.—which includes child protective proceedings—are governed by the court rules in subchapter 1.100 (applicability and construction of court rules), subchapter 3.900 (proceedings involving juveniles), and subchapter 8.100 (general administrative orders). MCR 3.901(A)(1). Other court rules may apply to juvenile cases in the family division of circuit court “only when [subchapter 3.900] specifically provides.” MCR 3.901(A)(2). MCR 3.901(B) lists court rules that apply to child protective proceedings: MCR 3.901–MCR 3.906, MCR 3.911-MCR 3.930, and MCR 3.991-MCR 3.993. MCR 3.901(B)(1).

B.​Statutory Authority and Paternity

Statutory authority exists for the determination of paternity for purposes of the Paternity Act,² MCL 722.711 et seq., the Revocation of Parentage Act,³ MCL 722.1431 et seq., the Adoption Code, MCL 710.21 et seq., the Acknowledgment of Parentage Act,⁴ MCL 722.1001 et seq., the Genetic Parentage Act, MCL 722.1461 et seq., the Safe Delivery of Newborns Law,⁵ MCL 712.1 et seq., the Child Custody Act, MCL 722.21 et seq., the Summary Support and Paternity Act, MCL 722.1491 et seq., and the Uniform Interstate Family Support Act (UIFSA),⁶ MCL 552.2101 et seq. Each of these statutory authorities, directly or indirectly to some degree, “deals with the same subject matter—the determination of a child’s legal father—and [they] all serve the interrelated purposes of establishing or disestablishing a child’s paternity.”⁷ In re E R Moiles (Moiles I), 303 Mich App 59, 68-69 (2013), rev’d in part and vacated in part on other grounds by In re E R Moiles (Moiles II), 495 Mich 944 (2014).⁸ 

“Statutes [that] relate to the same subject or share a common purpose” are in pari materia and must be read and construed “together as one law.” Moiles I, 303 Mich App at 68-69. See also Aichele v Hodge, 259 Mich App 146, 161 (2003), where the Court similarly stated “that the Paternity Act, the Acknowledgment of Parentage Act, and the Child Custody Act, which serve interrelated purposes, must be interpreted consistently with each other and read in pari materia.” Id.

6.3​Types of Fathers

A.​Father Under Select Provisions of the Court Rules and the Revocation of Parentage Act

One definition of father for purposes of child protective proceedings is “[a] man married to the mother at any time from a minor’s conception to the minor’s birth, unless a court has determined, after notice and a hearing, that the minor was conceived or born during the marriage, but is not the issue of the marriage[.]” MCR 3.903(A)(7)(a). There may be only one legal father. Sinicropi v Mazurek, 273 Mich App 149, 164 (2006).

Presumption of legitimacy. A child born to a mother who was married at any time from the child’s conception to the child’s birth is presumed to be the issue of the marriage. In re CAW, 469 Mich 192, 199 (2003).

Adoption. A legal father is “[a] man who legally adopts the minor[.]” MCR 3.903(A)(7)(b). 

Court order. A legal father is “[a] man who by order of filiation or by judgment of paternity is judicially determined to be the father of the minor[.]” MCR 3.903(A)(7)(c). 

Legally, a man that is the subject of a court’s order of filiation regarding the minor is known as the “affiliated father.” MCL 722.1433(b). Entry of an order of filiation is one method of establishing paternity when a child is born out of wedlock. Sinicropi, 273 Mich App at 163. An order of filiation may not be entered if there is a valid acknowledgment of parentage on file. Id. To enter an order of filiation under those circumstances, the court must first revoke the acknowledgment of parentage. Id.

Parental rights. A legal father is “[a] man judicially determined to have parental rights[.]” MCR 3.903(A)(7)(d). 

Acknowledgment of parentage. A legal father is “[a] man whose paternity is established by the completion and filing of an acknowledgment of parentage in accordance with the provisions of the Acknowledgment of Parentage Act, MCL 722.1001 et seq., or a previously applicable procedure.”⁹ MCR 3.903(A)(7)(e).

Legally, any individual who executes an acknowledgment of parentage is known as the “acknowledged parent”. MCL 722.1433(a) (”an individual who has affirmatively held themself out to be the child’s parent by executing an acknowledgment of parentage”). MCL 722.1433(a). An acknowledgment of parentage is another way to establish a child’s paternity when the child was born out of wedlock. Sinicropi, 273 Mich App at 163. When an acknowledgment of parentage is properly completed and filed naming one man as a child’s father, a court may not enter an order of filiation naming a different man as the child’s father. Id. at 164-165.

B.​Putative Father Under the Court Rules

For purposes of subchapter 3.900 of the Michigan Court Rules, a putative father is the alleged biological father of a child whenever there is no legal father. MCR 3.903(A)(24). If, in a child protective proceeding, “the court determines that the minor has no father as defined in MCR 3.903(A)(7), the court may, in its discretion, take appropriate action as described in [MCR 3.921(D)].” MCR 3.921(D).¹⁰ 

6.4​Natural Fathers Under the Equitable-Parent Doctrine

As it was initially adopted, the equitable-parent doctrine provided standing to nonbiological fathers seeking custody of or parenting time with a child born during their marriage to the child’s mother by recognizing the nonbiological fathers as natural fathers under certain circumstances. Pueblo v Haas, 511 Mich 345, 351 (2023) (extending the equitable-parent doctrine to same-sex couples who would have married absent the unconstitutional prohibition against same-sex marriage before Obergefell v Hodges, 576 US 644 (2015)). “‘[B]iological relationships are not [the] exclusive determination of the existence of a family[.] . . . No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in [their] care may exist even in the absence of blood relationship.’” Pueblo, 511 Mich at 351, quoting Smith v Org of Foster Families for Equality & Reform, 431 US 816, 843-844 (1977).

The equitable-parent doctrine is summarized in Atkinson v Atkinson, 160 Mich App 601 (1987), in which the doctrine first appeared. In that case, the Court of Appeals announced that “a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support. We hold that the husband may be considered the equitable parent under these circumstances . . . .”¹¹ Id. at 608-609. See also York v Morofsky, 225 Mich App 333, 336 (1997).¹²

In Pueblo, the Michigan Supreme Court “narrowly extend[ed] the equitable-parent doctrine” to address and resolve custody disputes occurring between same-sex couples who had been unconstitutionally prevented from marrying. Pueblo, 511 Mich at 351. In custody disputes involving same-sex couples, “[a] person seeking custody who demonstrates by a preponderance of the evidence that the parties would have married before the child’s conception or birth but for Michigan’s unconstitutional marriage ban is entitled to make their case for equitable parenthood to seek custody.” Id.

If the court recognizes a man as a natural father under the equitable-parent doctrine, that status is permanent, and the man possesses all of the rights and responsibilities of a legal parent. York, 225 Mich App at 337. “There is no distinction at that point between the ‘equitable’ parent and any other parent; each is endowed with the same rights and responsibilities of parenthood.” Id. Equitable parenthood is not fluid—that is, equitable-parent status does not ebb and flow over time. Id. at 338. “If equitable parenthood could ebb and flow over time, it would be a class of parenthood inferior to natural or adoptive parenthood, which are usually permanent statuses.” Id. “[I]t is not necessary that a party continually meet the three Atkinson criteria any more than it is necessary for a biological or adoptive parent to perpetually meet such criteria in order to retain parental status.” Id. at 337. A man may be an equitable parent as long as he satisfies the criteria in Atkinson, “for a reasonable period at some point . . . .” Id. 

The York Court explained that treating equitable parenthood as “a condition that could change over time—rather than a permanent status, is untenable” for three reasons. Id. at 338. First, treating equitable parenthood as fluid “would undermine the principle . . . that equitable parents stand on equal footing with natural and adoptive parents.” Id. Second, treating equitable parenthood as fluid would fail to recognize that “stability in acknowledged parent-child relationships is generally in the child’s best interests.” Id. Third, treating equitable parenthood as fluid would also fail to recognize that “stability and security in familial relationships are also in the parents’ best interests.” Id. And finally, “a view of equitable parenthood as a permanent status would foster legal certainty and predictability in such collateral areas as inheritance, income tax status, and medical care responsibility.” Id. at 338-339.

In opposite-sex marriages, the equitable-parent doctrine only applies to a child born or conceived during a marriage between the child’s mother and the man to be named the child’s equitable father. Van v Zahorik, 460 Mich 320, 330-331 (1999). The Court in Van refused “‘to extend the doctrine outside the context of marriage . . . .’”  Killingbeck v Killingbeck, 269 Mich App 132, 141-142 (2005), quoting Van, 460 Mich at 331.

“[A] court determination that a man is the equitable father of a child is mutually exclusive of a determination that the child was born out of wedlock . . . .” Coble v Green, 271 Mich App 382, 383, 388-389 (2006).¹³ In cases where there exists an equitable parentage order, a mother has no standing to initiate a paternity action regarding that child. Id. 

6.5​Putative Fathers/Alleged Biological Fathers/Natural Fathers and Child Protective Proceedings

A.​Putative Father

A putative father is “a man who is alleged to be the biological father of a child who has no father as defined in MCR 3.903(A)(7).” MCR 3.903(A)(24). A court may determine at any time during child protective proceedings that the child has no legal father. MCR 3.921(D). If, at any time during a child protective proceeding, the court determines that the child has no father as father is defined under MCR 3.903(A)(7), the court may inquire into the identity and location of the child’s putative, or natural, father. MCR 3.921(D)(1).

Termination of a husband’s parental rights under the Juvenile Code to a child born or conceived during his marriage to the child’s mother, making him the child’s presumed father, is not a determination that a child is not the issue of the marriage and that the husband-father is no longer the child’s father, only that the husband-father’s parental rights related to the child were terminated. In re CAW, 469 Mich 192, 199 (2003). Because termination of a presumed father’s parental rights alone does not mean that the child involved has no legal father, such a determination does not confer on a putative father standing to participate in child protective proceedings involving the child. Id.

B.​ Required Notice

If, after taking initial testimony on the identity and address of the natural father, the court finds probable cause to believe that an identifiable man is the child’s natural father, the court must “direct that notice be served on that person in any manner reasonably calculated to provide notice to the putative father^[14] . . . .”¹⁵ MCR 3.921(D)(1).¹⁶ 

Notice to the putative father may be given by publication “if his whereabouts remain unknown after diligent inquiry.” Id. “Any notice by publication must not include the name of the putative father.” Id. If the identity of the child’s natural father is unknown, the court must direct that notice by publication be given to the unknown father. Id.

C.​Contents of Notice

Notice that a hearing will be held to identify a child’s father must include all of the following information:

(1) the child’s name (if known).

(2) the name of the child’s mother (if known).

(3) the child’s birthplace and birthdate (if known).

(4) that a petition has been filed with the court alleging that the child has been harmed or has not been properly cared for.

(5) the time and location of the hearing at which the natural father is to appear to express any interest he has in the child.

(6) a statement informing the natural father that his failure to appear for the hearing will constitute:

(a) a denial of his interest in the child;

(b) a waiver of his right to be given notice of all subsequent hearings; and

(c) a waiver of his right to an appointed attorney.

(7) a statement informing the natural father that his failure to appear for the hearing could result in the termination of his parental rights. MCR 3.921(D)(1)(a)-(d).

D.​Hearing

After satisfying the notice requirements in MCR 3.921(D)(1), the court may conduct a hearing and determine,¹⁷ according to MCR 3.921(D)(2)(a)-(d), and as appropriate, that:

(1) the putative father was properly served with notice of the hearing, that is, in a manner the court finds was reasonably calculated to provide notice to the putative father.

(2) a preponderance of the evidence establishes that the putative father is the child’s natural father and that justice requires he be allowed 14 days to establish his paternity as provided in MCR 3.903(A)(7).

Note: The 14-day period may be extended for good cause shown. MCR 3.921(D)(2)(b). Unless good cause for delay is shown, the court does not have to allow a putative father to perfect paternity outside of the time set by the court. In re LE, 278 Mich App 1, 21 (2008), abrogated on other grounds by In re Sanders, 495 Mich 394 (2014).¹⁸ See In re IM Long, 326 Mich App 455, 465 (2018).

(3) there is probable cause to believe that another identifiable man is the child’s natural father, and if so, the other identifiable man must receive notice as provided in MCR 3.921(D).

(4) the identity of the child’s natural father cannot be determined after a diligent search, in which case the court may proceed without giving further notice and without appointing an attorney for the unidentified person.

If the child’s natural father has been given proper notice and fails to appear for the hearing, or appears for the hearing but fails to establish his paternity of the child within the time allowed by the court, the court may find that the natural father has waived all rights to further notice, including notice of the termination of his parental rights and notice of his right to an attorney. MCR 3.921(D)(3)(a)-(b).

Note: If a putative father, whose whereabouts are unknown, fails to appear at the hearing after notice was given “by publication or otherwise,” the court is not required to give further notice by publication of any subsequent hearings, unless the subsequent hearing concerns the termination of parental rights. MCR 3.921(E).

6.6​Revocation of Parentage Act¹⁹

The Revocation of Parentage Act was enacted “to provide procedures to determine the parentage of children in certain circumstances [and] to allow acknowledgments, determinations, and judgments relating to parentage to be set aside in certain circumstances[.]” 2012 PA 159, title.

If paternity has been established or is uncontested and the father has a substantial parent-child relationship with his child, he has a protected liberty interest in that relationship that entitles him to due process of law. Lehr v Robertson, 463 US 248, 261-262 (1983); Caban v Mohammed, 441 US 380, 392-393 (1979); Stanley v Illinois, 405 US 645, 649 (1972).

A.​Application

Different sections of the Revocation of Parentage Act govern the procedures for revoking parentage that had been established under certain circumstances:

•​MCL 722.1437 applies to actions to set aside an acknowledgment of parentage. MCL 722.1435(1).

•​MCL 722.1438 applies to actions to determine that a child’s genetic father is not the child’s father. MCL 722.1435(2).

•​MCL 722.1439 applies to actions to set aside an order of filiation. MCL 722.1435(3).

•​MCL 722.1441 applies to actions to determine that a child’s presumed parent is not the child’s parent. MCL 722.1435(4).

•​MCL 722.1445(2) applies in cases involving a child conceived as a result of nonconsensual sexual penetration²⁰ to actions to revoke an acknowledgment of parentage, determine that a genetic father is not the child’s father, set aside an order of filiation, or determine paternity regarding an alleged father and enter an order revoking paternity.

The Revocation of Parentage Act may not be used to bring an action “concerning the parentage of . . . [a] child conceived through the use of assisted reproduction that does not involve surrogacy if the parents of the child may be determined under the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq., or a] child conceived under a surrogacy agreement that complies with the assisted reproduction and surrogacy parentage act.” MCL 722.1443(11).

B.​Possible Outcomes

In an action filed under the Revocation of Parentage Act, a court may do any of the following:

•​ revoke an acknowledgment of parentage. MCL 722.1443(2)(a), MCL 722.1445(2)(a).

•​ determine that a child’s genetic father is not the child’s father. MCL 722.1443(2)(b), MCL 722.1445(2)(b).

•​ set aside an order of filiation or other paternity order. MCL 722.1443(2)(c), MCL 722.1445(2)(c).

•​ determine that a child was born out of wedlock. MCL 722.1443(2)(d).

•​ determine paternity and enter an order of filiation under MCL 722.717 of the Paternity Act. MCL 722.1443(2)(e).

•​ in cases involving a child conceived as a result of nonconsensual sexual penetration, determine paternity regarding an alleged father and enter an order of revocation of parentage for that alleged father. MCL 722.1445(2)(d).²¹

A court may refuse to interfere with an existing parentage determination if there is evidence that revoking parentage would not be in the child’s best interests. MCL 722.1443(4).²² Specifically, if there is evidence that revoking parentage is not in a child’s best interests, “[a] court may refuse to enter an order setting aside a parentage 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 . . . .” Id.

If the court refuses to revoke parentage, it must state on the record its reasons for the refusal. Id. MCL 722.1443(4) only requires such findings and reasons to be made on the record when it refuses to enter the order, i.e., when it does not alter the presumed parent’s status. Id. See also, e.g., Jones v Jones, 320 Mich App 248, 256-257 (2017) (“because the trial court ultimately did alter the presumed father’s status, the court clearly was not required to express its particular reasons”). 

Note: The child in Jones was conceived using assisted reproductive technology. Effective April 2, 2025, 2024 PA 29 amended MCL 722.1431 et seq., to prohibit actions under the Revocation of Parentage Act “concerning the parentage of . . . [a] child conceived through the use of assisted reproduction that does not involve surrogacy if the parents of the child may be determined under the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq., or a] child conceived under a surrogacy agreement that complies with the assisted reproduction and surrogacy parentage act.” MCL 722.1443(11).

C.​Factors to Consider

To determine whether to enter an order revoking parentage, the court may consider these factors:

“(a) Whether the presumed parent is estopped from denying parentage because of the individual’s conduct.

(b) The nature of the relationship between the child and the presumed parent or alleged father.

(c) The child’s age.

(d) The harm that may result to the child.  

(e) Other factors that may affect the equities arising from the disruption of the parent-child relationship.

(f) Any other factor that the court determines appropriate to consider.” MCL 722.1443(4).²³

D.​Genetic Testing

MCL 722.1443(6) requires the court to “order the parties to an action or motion under [the Revocation of Parentage Act, MCL 722.1431 et seq.,] 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].” The genetic testing must be conducted as described in MCL 722.716 of the Paternity Act. MCL 722.1443(6). 

However, “[t]he 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). See also Helton v Beaman, 304 Mich App 97, 110 (2014)²⁴ (opinion by O’Connell, J.), aff’d on other grounds 497 Mich 1001 (2015). According to the lead opinion, and agreed with by the concurring opinion, “DNA results are not binding on a court making a determination under [the Revocation of Parentage Act, and that] statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage.” Helton, 304 Mich App at 110 (O’Connell, J.); Helton, 304 Mich App at 123 (K. F. Kelly, J., concurring). In affirming the outcome in Helton, the Michigan Supreme Court held that “an order revoking an acknowledgment of parentage constitutes an order ‘setting aside a paternity determination’ and, therefore, is subject to a best interest analysis under MCL 722.1443(4)^[25].” Helton, 497 Mich 1001.

E.​Best-Interest Factors Under the Child Custody Act²⁶

The best-interest factors in the Revocation of Parentage Act apply to a court’s determination that a child was born out of wedlock even though the child’s mother was married at the time of the child’s birth. Demski v Petlick, 309 Mich App 404, 432 (2015). Consideration of the best-interest factors in the Child Custody Act is also proper:

“The breadth of the factors available to a court to consider is exemplified by the fact that Factor (h) is ‘[a]ny other factor that the court determines appropriate to consider.’ MCL 722.1443(4)(h).^[27] Given the discretion afforded to a trial court under MCL 722.1443(4) generally, and under MCL 722.1443(4)(h) specifically, the court is free to consider the best-interest factors set forth in the Child Custody Act, MCL 722.23, in its assessment under MCL 722.1443(4).” Demski, 309 Mich App at 432 n 10.

F.​What the Revocation of Parentage Act Does Not Do

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

G.​When an Action Under the Revocation of Parentage Act May Not Be Brought

An action under the Revocation of Parentage Act may not be initiated when the child is subject to a court’s jurisdiction under the Juvenile Code, MCL 712A.1 et seq., and a petition seeking the termination of parental rights to the child has been filed. MCL 722.1443(17). However, an action under the Revocation of Parentage Act may be brought under these circumstances if the court with jurisdiction over the child under the Juvenile Code “first finds that allowing an action under [the Revocation of Parentage Act] would be in the best interests of the child.” Id.

“An alleged father may not bring an action under [the Revocation of Parentage Act] if the child [was] 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).

H.​When Paternity Must Be Revoked Under the Revocation of Parentage Act

“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,^[28] 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.

(c) Set aside an order of filiation for an affiliated father.

(d) Make a determination of paternity regarding an alleged father and enter an order of revocation of parentage for that alleged father.” MCL 722.1445(2).

“2016 PA 178 revised the ROPA by adding subsections [(2)-(4)] to MCL 722.1445 in order to meet the requirement under the federal [Rape Survivor Child Custody Act, 34 USC 21301, et seq.] to ensure ‘termination of parental rights’ of the assailant, as defined at 34 USC 21301(2).” Blackman v Millward, ___ Mich App ___, ___ (2024). “[T]he 2016 amendments granted a mother the authority to initiate an action to protect herself and the child by terminating her offender’s parental rights.” Id. at ___.

If a mother proves by clear and convincing evidence at a fact-finding hearing that a child was conceived through nonconsensual sexual penetration, then “[t]he directive to revoke the AOP [Acknowledgment of Parentage] is mandatory—the court shall revoke the AOP.” Id. at ___. “This language does not leave any room for a trial court to exercise its discretion otherwise.” Id. at ___.

“MCL 722.1445(3) provides the only exception to the mandate that the court revoke the AOP [in an action brought under MCL 722.1445]: ‘[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.’” Blackman, ___ Mich App at ___, quoting MCL 722.1445(3). The bases for refusing to set aside a paternity determination, revoking an AOP, determining that a genetic father is not a child’s father, or determining that a child is born out of wedlock listed under MCL 722.1443(4) (best interest determination factors) do not apply to actions brought under MCL 722.1445(2). Blackman, ___ Mich App at ___.²⁹

6.7​Presumed Parent and the Revocation of Parentage Act³⁰

A.​Presumed Parent

MCL 722.1433(f) defines a presumed parent as “an individual who is presumed to be the child’s parent by virtue of marriage to the child’s mother at the time of the child’s conception or birth.” A husband is presumed to be the father of a child when he is married to the mother of a child conceived by assisted reproductive technology (ART), specifically, in vitro fertilization (IVF).”Jones v Jones, 320 Mich App 248, 254 (2017). See also MCL 333.2824(6).

Note: The child in Jones was conceived using assisted reproductive technology. Effective April 2, 2025, 2024 PA 29 amended MCL 722.1431 et seq., to prohibit actions under the Revocation of Parentage Act “concerning the parentage of . . . [a] child conceived through the use of assisted reproduction that does not involve surrogacy if the parents of the child may be determined under the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq., or a] child conceived under a surrogacy agreement that complies with the assisted reproduction and surrogacy parentage act.” MCL 722.1443(11).

“[U]nder the Paternity Act, the custodial rights of a presumed father (i.e., of a man presumed to be a child’s father because of his marriage to the child’s mother) are significant and warrant due process protection.” Graham v Foster (Graham I), 311 Mich App 139, 144 (2015), aff’d in part and vacated in part on other grounds by Graham v Foster (Graham II), 500 Mich 23 (2017),³¹ citing Aichele v Hodge, 259 Mich App 146, 164 (2003).³² “[The Revocation of Parentage Act’s] definition of a ‘presumed father’ clearly implies that the presumed father is afforded the legal right of parenthood, unless that presumption is rebutted in a successful action under the act.” Graham I, 311 Mich App at 144.

“A biological father has no standing to seek a declaration of paternity under the Paternity Act, MCL 722.711 et seq., when the child’s mother is married to another man unless a court has previously determined that the child was born out of wedlock.” In re Miller, 322 Mich App 497, 504 (2018).

B.​Alleged Father

MCL 722.1433(c) defines an alleged father as “a man who by his actions could have fathered the child.”

C.​Rebutting the Presumption of Parentage: Determining That a Child Was Born Out of Wedlock

MCL 722.1433(e) defines a presumed parent as “an individual who is presumed to be the child’s parent by virtue of marriage to the child’s mother at the time of the child’s conception or birth.”³³

Generally, even when a child has a presumed parent, the Revocation of Parentage Act permits the child’s mother, presumed parent, or alleged father to initiate an action to have the court determine that the child was born out of wedlock for the purpose of establishing the child’s parentage. MCL 722.1441(1)-(3).³⁴ Actions under the Revocation of Parentage Act in cases involving a presumed parent are subject to the very specific statutory provisions set forth in MCL 722.1441. The provisions in MCL 722.1441 include time requirements for initiating actions and detailed conditions that must be met before a presumed parent’s parentage may be revoked. An alleged father may bring an action to establish paternity as an original action under the Revocation of Parentage Act, but the action must be brought by motion in an existing child protective proceeding under MCL 712A.2(b) involving the child or in an existing action relative to support, custody, or parenting time. MCL 722.1443(1), (17). Specifically, an action may not be brought under the Revocation of Parentage Act if the child involved is under the court’s jurisdiction pursuant to the Juvenile Code, and a petition to terminate parental rights to the child has been filed, unless the court finds that permitting an action under the act is in the child’s best interests. MCL 722.1443(17). See also MCL 722.1441(5).

In a divorce proceeding, unless a court expressly considers the question of parentage and makes an express determination that a man is a child’s father, the court has not entered an order of filiation even though the judgment of divorce refers to the man as “defendant-father” and generally acknowledges the child born to the parties during their marriage. Glaubius v Glaubius, 306 Mich App 157, 161-162, 170-171 (2014).

D.​Court’s Refusal to Enter an Order Determining That a Child Was Born Out of Wedlock

“A court may refuse to enter an order . . . 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.” MCL 722.1443(4).³⁵ Factors a court may consider when deciding whether to enter an order determining that a child was born out of wedlock are set forth in MCL 722.1443(4)(a)-(f).³⁶ If the court refuses to enter an order determining that a child was born out of wedlock, it must state its reasons for the refusal on the record. MCL 722.1443(4).

6.8​Affiliated Fathers and the Revocation of Parentage Act³⁷

The Paternity Act,³⁸ MCL 722.711 et seq., provides the family division of circuit court with the jurisdiction and authority to compel and provide support for children born out of wedlock. 1956 PA 205, title. “Under the Paternity Act,^[39] a party can seek a judicial determination of paternity[.]” Aichele v Hodge, 259 Mich App 146, 154 (2003). “Under [the Paternity Act or the Acknowledgment of Parentage Act], paternity can be properly established only if the child is ‘born out of wedlock.’”⁴⁰ Id. at 155. See also MCL 722.714.

A.​Affiliated Father

The Revocation of Parentage Act defines an affiliated father as “a man who has been determined in a court to be the child’s father.” MCL 722.1433(b). See also Glaubius v Glaubius, 306 Mich App 157, 167 (2014). An order of filiation establishes an affiliated father. MCL 722.1433(g).

“Absent any indication of . . . specificity [that an order of filiation be entered under the Paternity Act], any judicial order establishing a determination in court that a man is a child’s father could demonstrate the determination of an affiliated father within the meaning of [MCL 722.1433(b)].⁴¹ See also [MCL 722.1433(g)].”⁴² Glaubius, 306 Mich App at 169.

B.​Action to Determine Paternity

The parties authorized to file an action to determine paternity under the Paternity Act are the mother, the father, and the Department of Health and Human Services (DHHS). MCL 722.714(1). An action to determine paternity may be brought during the mother’s pregnancy or at any time before the child reaches age 18. MCL 722.714(3). The action must be filed in family division of the circuit court where the child or the mother resides unless they both reside out of state, in which case the action must be filed in the county where the putative father resides. MCL 722.714(1); MCL 600.1021(1)(h). The court must enter an order of filiation establishing the child’s paternity and providing support for the child if (1) the court or verdict determines that the man is the child’s father, (2) the man verbally acknowledges to the court that he is the child’s father or files an acknowledgment of parentage, (3) the man receives a summons and a default judgment is entered against him, or (4) genetic testing establishes the man’s paternity. MCL 722.717(1)(a)-(d). No matter who initiates the action under the Paternity Act, “an order of filiation entered under [the Paternity Act] has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father.” MCL 722.714(14).

An action to determine paternity of a child born out of wedlock may not be initiated under the Paternity Act “if the child’s father acknowledges paternity under the acknowledgment of parentage act, or if the child’s paternity is established under the law of another state.”⁴³ MCL 722.714(2). Parentage established under the law of another state has the same effect in Michigan as in the other state; parentage under the law of another state may be used in the same way as an acknowledgment of parentage or an order of filiation may be used in Michigan. MCL 722.714b.

An affiliated father may initiate an action under the Revocation of Parentage Act to set aside a court’s order of filiation if the affiliated father’s paternity was decided as a result of the affiliated father’s failure to participate in the court proceedings. MCL 722.1439(1).

The time requirements in MCL 722.1441 apply to filing an action under the Revocation of Parentage Act by motion in an existing case when there is a presumed parent. See Glaubius v Glaubius, 306 Mich App 157, 173 (2014). According to MCL 722.1441(5), “an action to determine that a child was born out of wedlock may be brought ‘by a motion filed in an existing action,’” just as the plaintiff brought her action to revoke paternity by motion in the existing divorce case. Glaubius, 306 Mich App at 173, quoting MCL 722.1441(5).

C.​Prohibitions on Determinations of Parentage for Children Conceived Through Assisted Reproduction or Surrogacy Agreements

The Paternity Act may not be used to determine the parentage of:

“(a) A child conceived through the use of assisted reproduction^[44] that does not involve surrogacy if the parents of the child may be determined under the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq.].

(b) A child conceived under a surrogacy agreement^[45] that complies with the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq.].” MCL 722.714c.

D.​Genetic Testing Under the Paternity Act

Father is not expressly defined in the Paternity Act. The terms putative father, MCL 722.714(1), and alleged father, MCL 722.714(9), are both used to identify the man believed to be the child’s father.⁴⁶ If the parties do not consent to an order naming the man as the child’s father, the mother, alleged father, and child may be required to undergo genetic paternity testing as provided in MCL 722.716.⁴⁷ MCL 722.714(9).

Before trial in an action under the Paternity Act the court, on its own motion or on application by either party, must order that the mother, child, and alleged father “submit to blood or tissue typing determinations that may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child.” MCL 722.716(1). MCL 722.716 and MCL 722.716a detail the procedure involved when results from the testing are obtained and what may result from a party’s failure to submit to the testing.

E.​Court’s Continuing Jurisdiction

In all proceedings that occur under the Paternity Act, the court has continuing jurisdiction to decide an action under the Revocation of Parentage Act to set aside an order of filiation. MCL 722.720(c).

F.​Status of a Father After Divorce

In Glaubius v Glaubius, 306 Mich App 157, 161 (2014), a child’s mother filed for divorce from the child’s presumed father. In her complaint she stated that the parties had one child born during the marriage, and in the divorce judgment the parties were addressed as “Plaintiff-Mother” and “Defendant-Father.” Id. at 161-162. Following the divorce, the child’s mother initiated an action to revoke the defendant’s paternity. Id. at 162.

The trial court in Glaubius did not make an express finding in the divorce judgment regarding the defendant’s status as the child’s father; no challenge to his paternity was raised during the divorce proceedings. Id. at 170-171. “[T]he specific definitional dispute at issue relate[d] to whether defendant [was] a ‘presumed father,’ as contended by plaintiff, or an ‘affiliated father,’ as maintained by defendant.” Id. at 166. According to the Court, “on the facts of the present case, defendant qualifies as a presumed father and did not become an affiliated father by operation of the divorce judgment.” Id. at 171. Therefore, MCL 722.1441(1)(a) applied to the plaintiff’s action to revoke the defendant’s paternity. Glaubius, 306 Mich App at 171.

G.​Court’s Refusal to Enter an Order Setting Aside a Parentage Determination

“A court may refuse to enter an order setting aside a parentage determination . . . if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4).⁴⁸ Factors a court may consider when deciding whether to set aside a parentage determination are set forth in MCL 722.1443(4)(a)-(f).⁴⁹ If the court refuses to set aside a parentage determination, it must state its reasons for the refusal on the record. MCL 722.1443(4).

6.9​Acknowledged Parents and the Revocation of Parentage Act ⁵⁰

A.​Acknowledged Parent

The Revocation of Parentage Act defines an acknowledged parent as “an individual who has affirmatively held themself out to be the child’s parent by executing an acknowledgment of parentage under the acknowledgment of parentage act MCL 722.1001 to MCL] 722.1013].” MCL 722.1433(a).

The Acknowledgment of Parentage Act defines an acknowledged parent as “an individual who has established a parent-child relationship under [MCL 722.1001 et seq.].” MCL 722.1002(a). Child means “a child conceived and born to a woman who was not married at the time of conception or the date of birth of the child, a child that the circuit court determines was born or conceived during a marriage but is not the issue of that marriage, or a child that is born to an individual who gave birth to a child conceived through assisted reproduction [as defined by the Assisted Reproduction and Surrogacy Parentage Act (ARSPA), MCL 722.1701 et seq.].^[51]” MCL 722.1002(c). An acknowledgment of parentage properly signed and filed with the state registrar establishes a child’s parentage. MCL 722.1004. “An acknowledgment [of parentage] may be signed any time during the child’s lifetime.” MCL 722.1003(4). The state form that satisfies the statutory requirements in MCL 722.1007 for a valid acknowledgment of parentage is called an Affidavit of Parentage (DCH-0682). See MCL 722.1008.

The individuals eligible to acknowledge parentage of a child are set forth in MCL 722.1003(1) to MCL 722.1003(3). MCL 722.1004. Those individuals are:

•​A man who joins the child’s mother in completing a form that is an acknowledgment of parentage for a child who is born out of wedlock. MCL 722.1003(2). That man is considered the child’s natural father. Id.

•​An individual who joins the individual who gave birth to the child in completing a form that is an acknowledgment of parentage for a child who was conceived by assisted reproduction and born out of wedlock. MCL 722.1003(2). That individual is considered the child’s natural parent. Id.

•​The spouse of an individual who gave birth to a child conceived by assisted reproduction who completes a form that is an acknowledgment of parentage for that child. MCL 722.1003(3). That spouse is considered the child’s acknowledged parent. Id. 

The Court of Appeals concluded that “[n]othing in the Acknowledgment of Parentage Act requires that the man completing the acknowledgment form actually be the child’s biological father.” In re Daniels Estate, 301 Mich App 450, 456 (2013). The Court further noted in support of that observation that a man signing an acknowledgment of parentage waives certain other methods of determining that he is the child’s biological father. Id. at 456-457.

An acknowledgment of parentage “is the equivalent to an adjudication of parentage . . . and . . . may be the basis for court-ordered child support, custody, or parenting time^[52] without further adjudication under the paternity act [MCL 722.711 et seq.], or under the assisted reproduction and surrogacy parentage act [MCL 722.1701 et seq.]. MCL 722.1004. A child whose parentage is established by acknowledgment “bears the same relationship to the birth parent and the acknowledged parent as a child born or conceived during a marriage and has the identical status, rights, and duties of a child born in lawful wedlock effective from birth.” Id.⁵³

Because an acknowledgment of parentage “legally establishe[s] paternity and confer[s] the status of natural and legal father on the man executing the acknowledgment,” an order of filiation cannot be entered under the Paternity Act as long as the acknowledgment of parentage remains valid and has not been revoked. Sinicropi v Mazurek, 273 Mich App 149, 152 (2006). Revoking an acknowledgment of parentage requires filing a claim under the Revocation of Parentage Act. MCL 722.1007(h).

B.​Termination of an Acknowledged Parent’s Parental Rights

An acknowledged parent’s parental rights may be terminated in cases of a stepparent adoption only when the acknowledged parent, for a period of two years or more before the petition for terminating his parental rights was filed, has had the ability to support the child and has failed to do so or has had the ability to communicate or visit with the child and has failed to do so. MCL 710.51(6)(a)-(b). An acknowledged parent’s parental rights may also be terminated in accordance with the provisions in the Juvenile Code, MCL 712A.19b. Similarly, the parental rights of a putative father who has established a custodial relationship with a child or who has, according to his ability, provided substantial and regular support to the child or the child’s mother during the 90 days before being served with notice of the petition to terminate his parental rights, may only be terminated under the circumstances governing stepparent adoptions, MCL 710.51(6), or under the Juvenile Code, MCL 712A.2.

C.​Setting Aside an Acknowledgment of Parentage

MCL 722.1437 governs setting aside an acknowledgment of parentage under the Revocation of Parentage Act.⁵⁴ MCL 722.1435(1).⁵⁵

“The [child’s] mother, the acknowledged parent,^[56] an alleged father,^[57] or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage.” MCL 722.1437(1). An action to revoke an acknowledgment of parentage under MCL 722.1437 “must 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.” MCL 722.1437(1).

A petition to revoke an acknowledgment of parentage must be accompanied by an affidavit sufficient to establish one of the following: (1) mistake of fact, (2) newly discovered evidence that with due diligence could not have been discovered before the acknowledgment of parentage was signed, (3) fraud, (4) misrepresentation or misconduct, or (5) duress in signing the acknowledgment. MCL 722.1437(4)(a)-(e). If the affidavit is sufficient the court must order genetic testing in accordance with MCL 722.1443(6). MCL 722.1437(5).⁵⁸

The genetic testing results are meant to assist the court in its determination under the Revocation of Parentage Act, but the results are not binding on the court. MCL 722.1443(6). The person filing the petition to revoke an acknowledgment of parentage “has the burden of proving, by clear and convincing evidence, that the acknowledged parent is not the father of the child.” MCL 722.1437(5).

“[A]n order revoking an acknowledgment of parentage constitutes an order ‘setting aside a paternity determination’ and, therefore, is subject to a best interest analysis under MCL 722.1443(4).” Helton v Beaman, 497 Mich 1001 (2015).

D.​Court’s Refusal to Enter an Order Revoking an Acknowledgment of Parentage

“A court may refuse to enter an order . . . revoking an acknowledgment of parentage . . . if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4).⁵⁹ Factors a court may consider when deciding whether to enter an order revoking an acknowledgment of parentage are set forth in MCL 722.1443(4)(a)-(f).⁶⁰ If the court refuses to enter an order revoking an acknowledgment of parentage, it must state its reasons for the refusal on the record. MCL 722.1443(4).

6.10​Genetic Fathers and the Revocation of Parentage Act⁶¹

A.​Genetic Father

The Revocation of Parentage Act defines a genetic father as “a man whose paternity has been determined solely through genetic testing under the paternity act . . . [MCL 722.711 to MCL] 722.730], the summary support and paternity act [MCL 722.1491 to MCL 722.1503,], or the genetic parentage act [MCL 722.1461 to MCL 722.1475].”MCL 722.1433(e). Paternity of a child born out of wedlock may be established under the Paternity Act after the mother, the alleged father, and the child have undergone genetic paternity testing. See MCL 722.714 and MCL 722.716.⁶² When genetic testing identifies a man as a child’s genetic father, the court may enter an order of filiation, which makes the child’s genetic father an affiliated father.⁶³ See MCL 722.714(14) and MCL 722.717.

If the parties cannot agree to an order naming the man as the child’s father, the mother, alleged father, and child may be required to undergo genetic testing, as provided by MCL 722.716 of the Paternity Act, to determine the child’s paternity. MCL 722.714(9). If any party fails to appear for genetic paternity testing, the DHHS or its designee may request that the court issue an order compelling the parties to undergo genetic paternity testing. MCL 722.714(10).

If paternity is determined under the Paternity Act, the court may enter an order of filiation as provided in MCL 722.717. MCL 722.714(14). No matter who initiated the action under the Paternity Act, the resulting order of filiation “has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father.” Id. 

B.​Determining That a Genetic Father Is Not a Child’s Father⁶⁴

Under the Revocation of Parentage Act, MCL 722.1443(2)(b), the court may “[d]etermine that a genetic father is not a child’s father.” “[MCL 722.1438] governs an action to determine that a genetic father is not a child’s father.” MCL 722.1435(2).

Under MCL 722.1438(1), “[t]he mother, the genetic father, an alleged father,^[65] or a prosecuting attorney may file an action for an order determining that a genetic father is not a child’s father.” “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). “An action under [MCL 722.1438] 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.” MCL 722.1438(1). “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).

“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).

C.​Court Order for 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(6)⁶⁶].” MCL 722.1438(3). “The court may order the person filing the action to repay the cost of the genetic test to the state.” Id.

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 of the paternity act].” “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).

“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).

D.​Court’s Refusal to Enter an Order Determining That a Genetic Father is Not a 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).⁶⁷ Factors a court may consider when deciding whether to enter an order determining that a genetic father is not a child’s father are set forth in MCL 722.1443(4)(a)-(f).⁶⁸ If the court refuses to enter an order determining that a genetic father is not a child’s father, it must state its reasons for the refusal on the record. MCL 722.1443(4).

E.​Genetic Parentage Act⁶⁹

1.​Title IV-D Services Required

The Genetic Parentage Act may, provided that other requirements listed in MCL 722.1467(1) are met, determine paternity for a child born out of wedlock⁷⁰ if the child’s alleged father⁷¹ or the child’s mother is receiving services from a title IV-D⁷² agency. MCL 722.1467(1)(a). A title IV-D agency for purposes of the Genetic Parentage Act is an agency defined in MCL 552.602 of the Support and Parenting Time Enforcement Act. MCL 722.1463(h). According to MCL 552.602(ll) of the Support and Parenting Time Enforcement Act, a title IV-D agency is “the agency in this state performing the functions under title IV-D and includes a person performing those functions under contract, including an office of the friend of the court or a prosecuting attorney.”⁷³

2.​Testing Requirements

“Genetic testing that determines a man is the biological father of a child under [the Genetic Parentage Act] establishes paternity,” MCL 722.1469(1), and “may be the basis for court-ordered child support, custody, or parenting time without further adjudication under the paternity act,” MCL 722.1469(2).

MCL 722.1467(e) set forth the list of conditions under which a man may be considered the biological father of a child born out of wedlock. The testing must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization . . . .” MCL 722.1467(1)(c). The probability of paternity must be at least 99%. MCL 722.1467(d)MCL 722.1467(a) to .

3.​When Genetic Testing Establishes Paternity

If genetic testing establishes that a man is a child’s biological father, the mother is given initial custody of the child without prejudice to the custodial rights or parenting time of either parent until the court determines, or the parties agree, otherwise. MCL 722.1469(1). An agreement between the parties concerning custody of the child must be in writing and acknowledged by the court. Id.

“The child who is the subject of the genetic testing has the same relationship to the mother and the man determined to be the biological father under [the Genetic Parentage Act] as a child born or conceived during a marriage and has identical status, rights, and duties of a child born in lawful wedlock effective from birth.” MCL 722.1469(2).

“Except as otherwise provided by law, a mother and father who have genetic tests that are filed as a genetic paternity determination form as prescribed by [MCL 722.1471] are consenting to the general personal jurisdiction of the courts of record of this state regarding the issues of the support, custody, and parenting time of the child.” MCL 722.1473.

4.​When the Genetic Parentage Act May Not Be Used to Establish Parentage

Parentage cannot be established under the Genetic Parentage Act if “[t]he child’s parent has previously acknowledged parentage under the acknowledgment of parentage act . . . or if the child’s parentage has been established under the law of this or another state.” MCL 722.1465(a).

Also, the Genetic Parentage Act may not be used to determine paternity if “[t]he child is subject to a pending adoption proceeding under the Michigan adoption code . . . , or if the child is subject to a pending adoption proceeding in another state.”⁷⁴ MCL 722.1465(b).

Nor may the Genetic Parentage Act be used to establish parentage for a child conceived through the use of assisted reproduction or a surrogacy agreement under the Assisted Reproduction and Surrogacy Parentage Act, MCL 722.1701 et seq. MCL 722.1465(c).

6.11​Paternity and the Adoption Code

A.​Putative Father

Putative father is not expressly defined in the Adoption Code but the term is used in several statutory provisions of the Adoption Code to identify a man who may file a notice of his intent to claim paternity in proceedings involving adoption and the child he is believed to have fathered. See MCL 710.33, MCL 710.34, MCL 710.36, MCL 710.37, MCL 710.39. Black’s Law Dictionary (11th ed), defines putative father as “[t]he alleged biological father of a child born out of wedlock.” Although not expressly defined in the Adoption Code, a putative father is recognized as an interested party entitled to notice of “a petition for a hearing to identify the father of an adoptee and to determine or terminate his rights . . . .” MCL 710.24a(2)(b).

A man may not be identified as a child’s putative father and a respondent in child protective proceedings unless it has been determined that the child has no legal father as defined in MCR 3.903A)(7). In re KH, 469 Mich 621, 630 (2004). 

B.​Child Born Out of Wedlock

The Adoption Code defines a child born out of wedlock as “a child conceived and born to a woman who was not married from the conception to the date of birth of the child, or a child whom the court has determined to be a child born during a marriage but not the issue of that marriage.” MCL 710.22(h).

C.​Notice of Intent to Claim Paternity

Before the birth of a child born out of wedlock, the Adoption Code provides that a man claiming to be the child’s father may file a verified notice of intent to claim paternity⁷⁵ with the court in any county within Michigan. MCL 710.33(1). The notice must be made under oath and contain the putative father’s address. Id.

A man filing a notice of intent to claim paternity is presumed to be the child’s father for purposes of the Adoption Code, unless the child’s mother denies that the man is the child’s father. MCL 710.33(2). A notice of intent to claim paternity creates a rebuttable presumption that the man who files the intent is the child’s father for purposes of the Paternity Act and for purposes of child protective proceedings. Id. 

“A person who timely files a notice of intent to claim paternity shall be entitled to notice of any hearing involving that child to determine the identity of the father of the child and any hearing to determine or terminate his paternal rights to the child.” MCL 710.33(3).

On the next business day following receipt of the notice, the court must forward the notice of intent to claim paternity to the vital records division of the Michigan Department of Community Health (MDCH). MCL 710.33(1). Once the vital records division receives the notice, it must send a copy of the notice by first-class mail to the child’s mother (if her address is indicated on the notice). Id.

D.​Termination of Putative Father’s Parental Rights to an Adoptee

The Adoption Code provides a detailed procedure for managing the adoption process of an adoptee who was born out of wedlock and whose putative father’s identity is unknown or whose putative father’s identity is known but whose whereabouts are unknown. See MCL 710.36.

The Adoption Code also describes the procedure for terminating a putative father’s parental rights under certain circumstances following notice to the putative father or following the putative father’s disclaimer of paternity or affirmation of paternity and denial of interest in custody of the child. See MCL 710.37.

The process required to determine whether a putative father’s parental rights should be terminated when the putative father requests custody of the child or has established a custodial relationship with the child or has provided the child’s mother or the child with substantial and regular support is set forth in MCL 710.39.⁷⁶

6.12​Determining Paternity and Maternity Under the Safe Delivery of Newborns Law

A.​Surrender of a Newborn

The Safe Delivery of Newborns Law, MCL 712.1 et seq., regulates a parent’s surrender⁷⁷ of a newborn⁷⁸ to an emergency service provider.⁷⁹ A court has jurisdiction over a newborn surrendered under the SDNL and may appoint a lawyer-guardian ad litem to represent the child in proceedings under the SDNL. MCL 712.2(1). Once an emergency service provider has taken the newborn into temporary protective custody under the SDNL, the emergency service provider must “make a reasonable effort to” provide the surrendering parent with information and must “make a reasonable attempt to” obtain certain information from the surrendering parent. MCL 712.3(1)-(2).

If the emergency service provider is not a hospital, the emergency service provider must transfer the newborn to a hospital. MCL 712.5(1). The hospital that receives the newborn must take the child into protective custody and have the newborn examined by a doctor. MCL 712.5(2). If the doctor determines that the newborn may have been subject to child abuse or child neglect or that the child is not a newborn, the doctor must immediately notify the DHHS. Id. If the doctor is not required to notify the DHHS, the hospital must inform a child-placing agency that the hospital has taken temporary protective custody of a newborn under the SDNL. MCL 712.5(3). Among other duties, the child-placing agency must, within 28 days, “make reasonable efforts to identify, locate, and provide notice of the surrender of the newborn to the nonsurrendering parent.” MCL 712.7(f). The child-placing agency must report its efforts and the results of those efforts in writing to the court that made the placement. Id. If the nonsurrendering parent’s identity and whereabouts are unknown, the child-placing agency must give notice to the parent “by publication in a newspaper of general circulation in the county where the newborn was surrendered.” Id.

B.​Petition For Custody Requires Court To Determine Paternity or Maternity of a Surrendered Newborn

If the surrendering or nonsurrendering parent timely files a petition for custody of the surrendered newborn,⁸⁰ the court must, within seven days after the petition was filed and before holding a custody hearing, “conduct a hearing to make the determinations of paternity or maternity as described in [MCL 712.11].” MCL 712.10(3).

For purposes of determining paternity following a petition for custody, “the court shall order the child and each party claiming paternity to submit to blood or tissue typing determinations or DNA identification profiling,^[81] as described in [MCL 722.716 of the Paternity Act].” MCL 712.11(1).⁸² Determining maternity following a petition for custody also requires “the court [to] order the child and each party claiming maternity to submit to blood or tissue typing determinations or DNA identification profiling, as described in [MCL 722.716 of the Paternity Act].” MCL 712.11(2). Blood or tissue typing or DNA profiling is not required to establish maternity when the emergency service provider witnessed the child’s birth and there exists documentation sufficient to support the determination of maternity. Id.

“If the probability of paternity or maternity determined by the blood or tissue typing or DNA identification profiling is 99% or higher and the DNA identification profile and summary report are admissible, paternity or maternity is presumed and the petitioner may move for summary disposition on the issue of paternity or maternity.”⁸³ MCL 712.11(3). “If the result of the paternity or maternity testing is admissible and establishes that the petitioner could not be the parent of the newborn, the court shall dismiss the petition for custody.” MCL 712.11(5).

“The court may order the petitioner to pay all or part of the cost of the paternity or maternity testing.” MCL 712.11(4).

C.​Terminating Parental Rights to a Surrendered Newborn

A parent who surrenders a newborn under MCL 712.3 and who does not file a petition for custody of the newborn under MCL 712.10 within 28 days of the surrender is presumed to have knowingly released their parental rights to the newborn. MCL 712.10(1); MCL 712.17(1). Once the 28 days have expired without a petition for custody having been filed, the child-placing agency authorized to place the newborn must immediately petition the court “to determine whether the release shall be accepted and whether the court shall enter an order terminating the rights of the surrendering parent.” MCL 712.17(2).

If a nonsurrendering parent fails to file a petition for custody within 28 days after notice of the surrender was published, the child-placing agency authorized to place the newborn must immediately petition the court “to determine whether the court shall enter an order terminating the rights of the nonsurrendering parent.”⁸⁴ MCL 712.17(3).

The court must schedule a hearing within 14 days of receiving the child-placing agency’s petition. MCL 712.17(4). The child-placing agency must produce evidence at the hearing demonstrating that the surrendering parent released the newborn. Id. Evidence presented at the hearing by the child-placing agency must also demonstrate the efforts made by the child-placing agency “to identify, locate, and provide notice to the nonsurrendering parent.” Id. The court must terminate the surrendering and nonsurrendering parents’ parental rights⁸⁵ if it finds by a preponderance of the evidence that:

(1) The surrendering parent knowingly released their rights to the newborn.

(2) Reasonable efforts were made to locate the nonsurrendering parent.

(3) A custody action had not been filed. MCL 712.17(5).

Termination proceedings conducted under the Safe Delivery of Newborns Law (SDNL) apply to a surrendering newborn’s mother and to her husband. In re Miller, 322 Mich App 497, 504, 506-507 (2018). “‘[A] child may have only one legal father,’ . . . so the legal father of a child born or conceived during a marriage is presumed to be the mother’s husband until that presumption is defeated.” Id. at 505. Under the SDNL, a single legal father is determined by the requirement that each person petitioning for custody and claiming paternity undergo blood or tissue typing or DNA testing “leaving only one as the true legal father.” Id.; MCL 712.11(1). “[T]he parental rights at issue in a surrender proceeding concern the biological father.” Miller, 322 Mich App at 505. “If a presumed father later appeared to challenge the . . . adoption [of a child born during his marriage to his wife, the surrendering parent], either he would be precluded from asserting paternity because he was the biological father whose parental rights were terminated, or he would have to demonstrate that he was not the biological father whose parental rights were terminated, effectively defeating the presumption of legitimacy.”Id. In such a case, any basis for a party to challenge the adoption would have been eliminated. Id.

6.13​The Uniform Interstate Family Support Act (UIFSA)⁸⁶

The purpose of the Uniform Interstate Family Support Act (UIFSA), MCL 552.2101 et seq., is to, “[a]mong other things, . . . provide[] guidelines and procedures for the registration, recognition, enforcement, and modification of foreign support orders from countries that are parties to the [2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance].” House Legislative Analysis, HB 4742, HB 4744, SB 518, and SB 519 (October 4, 2016). See MCL 552.2102(c). In addition, “[t]he [UIFSA] provides for the recognition and enforcement of family support orders across state lines.” Senate Legislative Analysis, HB 4742, HB 4744, SB 518, and SB 519 (December, 22, 2015). 

The UIFSA also addresses the question of parentage. MCL 552.2402 states: “A tribunal^[87] of this state authorized to determine parentage of a child may serve as a responding tribunal^[88] in a proceeding to determine parentage of a child brought under [the UIFSA] or a law or procedure substantially similar to [the UIFSA].” The following statutory provisions are instructional when the issue of parentage arises in UIFSA cases, depending on the specific circumstances present in a case: MCL 552.2102(g), (l), (m), (n), (p)(i), (p)(iii), (u), (v), (w), (aa)(iii), (cc); MCL 552.2201(1)(g); MCL 552.2305(2)(a); MCL 552.2311(1); MCL 552.2315; and MCL 552.2316(1), (4), (10).

An individual may initiate an action to determine parentage under the UIFSA by filing a petition⁸⁹ in an initiating tribunal⁹⁰ for forwarding to a responding tribunal, or an individual may initiate an action to determine parentage by filing a petition directly in another state or country that can exercise personal jurisdiction over the respondent. MCL 552.2301(2). In an action under the UIFSA to determine parentage, a state tribunal “may exercise personal jurisdiction over a nonresident individual” under any of the circumstances listed in MCL 552.2201(1). MCL 552.2201. When Michigan acts as a responding tribunal and receives a petition by transfer from an initiating tribunal or a petition filed directly with the Michigan tribunal, the Michigan tribunal, if not prohibited by other law, may “determine parentage of a child.” MCL 552.2305(2)(a). See also MCL 552.2402.

MCL 552.2316 governs the type and use of evidence that may be involved in a proceeding to determine parentage. A nonresident party is not required to be physically present in a tribunal that will determine a child’s parentage. MCL 552.2316(1). “A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.” MCL 552.2316(10). “A party whose parentage of a child has been previously determined by or according to law may not plead nonparentage as a defense to a proceeding under [the UIFSA].” MCL 552.2315.