6.7Presumed Parent and the Revocation of Parentage Act1
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),2 citing Aichele v Hodge, 259 Mich App 146, 164 (2003).3 “[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).
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.”4
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).5 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).6 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).7 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).
1 The Revocation of Paternity Act was renamed the Revocation of Parentage Act by 2024 PA 29, effective April 2, 2025. For more information about presumed fathers and the Revocation of Parentage Act, see the Michigan Judicial Institute’s Quick Reference Materials—Determining That a Child’s Presumed Father Is Not a Child’s Father.
2 The Michigan Supreme Court agreed with the Court of Appeals that MCR 2.205(A) made the child’s presumed father a necessary party to the Revocation of Parentage Act action that sought to establish that the child born during his marriage to the child’s mother was born out of wedlock. Graham II, 500 Mich at 28-29. However, the Supreme Court vacated the Court of Appeals opinion in part because the Court of Appeals preemptively adjudicated the merits of the presumed father’s defense before it could be known if he would raise that defense because he had not yet been made a party to the proceeding. Id. at 30.
3 For more information on the precedential value of an opinion with negative subsequent history, see our note.
4 MCR 3.903(A)(7)(a) also states that a man married to a child’s mother at any time from the child’s conception to the child’s birth is a child’s father for purposes of subchapter 3.900 of the Michigan Court Rules (Proceedings Involving Juveniles), “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[.]”
5 The DHHS may also initiate an action under MCL 722.1441 to have a court determine that a child was born out of wedlock if the child is supported in whole or in part by public assistance. MCL 722.1441(4).
6 The court may also refuse to enter orders to set aside a parentage determination, revoking an acknowledgment of parentage, or to determine that a genetic father is not a child’s father. See MCL 722.1443(4).
7 See Section 6.6(C) for more information.