3.5​Parentage Under the Revocation of Parentage Act (ROPA)

Note: Effective April 2, 2025, 2024 PA 29 retitled the Revocation of Paternity Act (ROPA) as the Revocation of Parentage Act. This section discusses caselaw involving the former ROPA, and it includes statutory provisions reflecting the change from paternity to parentage. The editor of this benchbook has made a global effort to edit the text accordingly. A revision may be flagged with a footnote referring to the public act that amended the statute cited or that affected the information found in caselaw.

“If a child has a presumed parent, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s parentage if an action is filed by the child’s mother[, the presumed parent, the alleged father, or, if the child is being supported by public assistance, the DHHS.]²⁶ MCL 722.1441(1). MCL 722.1443(2)(e) permits the court to “[m]ake a determination of paternity and enter an order of filiation as provided for under . . . MCL 722.717.”

“An action may not be brought under [the ROPA] if the child is under court jurisdiction under . . . MCL 712A.1 to [MCL] 712A.32, and a petition has been filed to terminate the parental rights to the child, unless the court having jurisdiction under . . . MCL 712A.1 to [MCL] 712A.32, first finds that allowing an action under [the ROPA] would be in the best interests of the child.” MCL 722.1443(15).

A.​Initiating Parentage Action

“An action under [MCL 722.1441] may be brought by a complaint filed in an original action or by a motion filed in an existing action, as appropriate under this act and rules adopted by the supreme court.” MCL 722.1441(5).

An original action filed under the Revocation of Parentage Act seeking a determination of paternity and an order of filiation as provided under MCL 722.717, 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].”²⁷ MCL 722.1443(1).

B.​Child’s Mother Files Parentage Action

“If a child has a presumed parent, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s parentage if an action is filed by the child’s mother[²⁸] and either of the following applies:

(a) All of the following apply:

(i) The mother identifies the alleged father by name in the complaint or motion commencing the action.

(ii) The presumed parent, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.

(iii) The action is filed within 3 years after the child’s birth.^[29] 

(iv) Either the court determines the child’s parentage or the child’s parentage will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.

(b) All of the following apply:

(i) The mother identifies the alleged father by name in the complaint or motion commencing the action.

(ii) Either of the following applies:

(A) The presumed parent, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the action.

(B) The child is less than 3 years of age and the presumed parent lives separately and apart from the child. . . . ^[30]

(iii) Either the court determines the child’s parentage or the child’s parentage will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.” MCL 722.1441(1).

Evidentiary hearing. “[A] trial court is not obligated to hold an evidentiary hearing under MCL 722.1441(1)(a) absent a threshold showing that there are contested factual issues that must be resolved in order for the trial court to make an informed decision.” Parks v Parks, 304 Mich App 232, 240, 243 (2014) (“defendant's allegations [that the plaintiff made statements mutually and openly acknowledging the alleged father as the biological father] failed to meet the threshold requirement which would have potentially entitled her to an evidentiary hearing” where “[t]here were no disputed facts before the court,” and even if the plaintiff’s statements were accepted as true, “the statements themselves failed to raise a question regarding whether there was a mutual acknowledgment of [the alleged father’s] biological relationship to the child”). See also IGCFCO III, LLC v One Way Loans, LLC, ___ Mich App ___, ___ (2024) (“[W]hether to hold an evidentiary hearing is an exercise of the trial court’s discretion . . . .”; “[t]he trial court need not hold an evidentiary hearing if it can sufficiently decide an issue on the basis of evidence already presented.”).

C.​Presumed Parent Files Parentage Action

“If a child has a presumed parent, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s parentage if an action is filed by the presumed parent within 3 years after the child’s birth or if the presumed parent raises the issue in an action for divorce or separate maintenance between the presumed parent and the mother.” MCL 722.1441(2).³¹

MCL 722.1441(2) permits a presumed parent to raise the issue of paternity “in a paternity action filed within three years of the child’s birth OR in a divorce action (without regard to the child’s age).” Taylor v Taylor, 323 Mich App 197, 199, 201 (2018) (holding that the three-year limitation in MCL 722.1441(2) “does not apply if the issue is raised in a divorce action” between the presumed parent and the mother; accordingly, the trial court erred by denying the defendant-presumed parent’s motions for a parentage determination under MCL 722.1443(1) and to join the possible biological father on the basis that the issue was raised in the divorce action more than three years after the child’s birth).

Judgment of divorce is not paternity determination. “When the parties to a divorce action have proceeded in keeping with [the] presumption of legitimacy and do not contest the issue of paternity in the course of the divorce, . . . the resulting divorce judgment does not signify a determination in court that the husband is the father of the child for purposes of the Revocation of [Parentage³²] Act. Rather, the divorce judgment merely recognizes the continued adherence to the presumption of legitimacy without answering the distinct question whether the husband is the child’s father.” Glaubius v Glaubius, 306 Mich App 157, 171 (2014). Accordingly, a presumed father maintains that status and “[does] not become an affiliated father by operation of the divorce judgment.” Id.

D.​Alleged Father Files Parentage Action

“If a child has a presumed parent, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s parentage if an action is filed by an alleged father and any of the following applies:

(a) All of the following apply:

(i) The alleged father did not know or have reason to know that the mother was married at the time of conception.

(ii) The presumed parent, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child.

(iii) The action is filed within 3 years after the child’s birth . . . .^[33]

(iv) Either the court determines the child’s parentage or the child’s parentage will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.

(b) All of the following apply:

(i) The alleged father did not know or have reason to know that the mother was married at the time of conception.

(ii) Either of the following applies:

(A) The presumed parent, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the action.

(B) The child is less than 3 years of age and the presumed parent lives separately and apart from the child . . . ^.[34] .

(iii) Either the court determines the child’s parentage or the child’s parentage will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.

(c) Both of the following apply:

(i) The mother was not married at the time of conception.

(ii) The action is filed within 3 years after the child’s birth. . . .”³⁵  MCL 722.1441(3).

“[I]f conception occurred during wedlock, [MCL 722.1441(3)(a)] needs to be further examined and [MCL 722.1441(3)(c)] is rendered irrelevant or unsupportable, whereas if conception occurred out of wedlock, [MCL 722.1441(3)(c)] is triggered and [MCL 722.1441(3)(a)] is rendered irrelevant or unsupportable.” Sprenger v Bickle, 307 Mich App 411, 418-419 (2014).

“Working together, [MCL 722.1441(3)(a)] and [MCL 722.1441(3)(c)] can give an alleged father standing even if it is impossible to determine whether conception occurred before or after the finalization of a divorce. In that circumstance, if the alleged father did not know or have reason to know before entry of a divorce judgment that a child’s mother was married, and if the other requirements in [MCL 722.1441(3)(a)(ii)-(iv)] were satisfied, the alleged father could proceed because either [MCL 722.1441(3)(a)] or [MCL 722.1441(3)(c)] would have been definitively established, despite being unable to pinpoint the specific subsection that was established.” Sprenger, 307 Mich App at 419 n 2.

1.​Court’s Discretion on Out of Wedlock Determination

“MCL 722.1441(3) indicates that the trial court ‘may’ determine that the child is born out of wedlock when the elements [of MCL 722.1441(3)] are met; it does not state that such action is mandatory.” Demski v Petlick, 309 Mich App 404, 425 (2015).

2.​Child Conceived Due to Criminal Sexual Conduct

“An 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).

3.​Standing Issues

a.​Constitutionality of Standing Requirements

“[A] putative father . . . who seeks to establish paternity with regard to a child conceived and born during the mother’s marriage to another man has no constitutional due-process right to claim paternity, whether under the Revocation of [Parentage³⁶] Act or any other statute.” Grimes v Van Hook-Williams, 302 Mich App 521, 530, 532 (2013) (finding that “the standing requirements contained in the Revocation of Paternity Act are constitutional,” and the putative father lacked standing to bring a paternity action under the Revocation of Paternity Act where he knew or had reason to know that the child was born and conceived while the child’s mother was married to another man).

b.​No Knowledge of Marriage

“MCL 722.1441(3)(a) clearly envisions and applies to circumstances in which a male has sexual intercourse with a married female, not knowing her to be a married woman at the time and without adequate information such that he should have known about her marital status.” Sprenger v Bickle, 307 Mich App 411, 419 (2014). “When there is uncertainty about whether conception occurred before or after entry of a divorce judgment, the better-framed question for purposes of analyzing MCL 722.1441(3)(a)(i) might involve asking whether the alleged father knew or had reason to know that the child’s mother was married before her divorce was finalized.” Sprenger, 307 Mich App at 419 (holding that the alleged father lacked standing to commence an action under the Revocation of Parentage Act,³⁷ MCL 722.1441(3)(a)(i), where his testimony established that he knew that the child’s mother was married at the time of conception).

The alleged father lacked standing to commence an action under the Revocation of Parentage Act, MCL 722.1441(3)(a)(i),] where “[the alleged father] fully admit[ted] that he was aware of [the mother’s] marriage when he began dating her[, and i]n the absence of any proof of an intervening divorce, it was unreasonable for [the alleged father] to presume that [the mother] did not remain legally married to [her husband at the time of the child’s conception].” Grimes v Van Hook-Williams, 302 Mich App 521, 529 (2013).

c.​Child Conceived Outside of Wedlock

To bring a paternity action under MCL 722.1441(3)(c), conception of the child must have occurred outside of wedlock. Sprenger v Bickle, 307 Mich App 411, 416-417 (2014).

The alleged father lacked standing to commence a paternity action under the Revocation of Parentage Act, MCL 722.1441(c)(i), where the expert witnesses for both parties “concurred that the most likely time of conception” was before the mother’s divorce was finalized, the alleged father’s expert testified there was a “‘95 to 97 percent’ [chance] that conception occurred during th[e] pre-divorce-judgment time frame,” and “the [chances] that [the mother] conceived [after the judgment of divorce was finalized] was ‘1 to 2 percent.’” Sprenger, 307 Mich App at 420.

4.​No Violation of Equal Protection

a.​Treating Presumed Parent and Alleged Father differently

 MCL 722.1441, which permits a court to determine that a “child is born out of wedlock” and effectively “grant[s] the biological father of a child standing to establish paternity pursuant to the Paternity Act,” does not implicate the Equal Protection Clauses of the Michigan and United States Constitutions. Demski v Petlick, 309 Mich App 404, 464 (2015). “Because the constitutional guarantees of equal protection do not require that persons in different circumstances be treated the same,” a presumed parent and an alleged father may be treated differently under MCL 722.1441 if the alleged father is the child’s biological father. Demski, 309 Mich App at 464. “[T]he actual effect of the Revocation of [Parentage³⁸] Act, combined with the Paternity Act, is to provide a mechanism for determining which man is the father of a minor child, and therefore in possession of a fundamental liberty interest in his relationship with the child.” Id.

b.​Treating Child’s Mother and Alleged Father Differently

“[T]he Legislature’s decision to prescribe different statutory standing requirements for a child’s mother and alleged father in the Revocation of [Parentage³⁹] Act does not offend equal protection[] . . . [b]ecause married mothers and alleged fathers are not ‘actually similarly situated’ in the area covered by the Revocation of [Parentage⁴⁰] Act[.]” Grimes v Van Hook-Williams, 302 Mich App 521, 530, 536-537 (2013) (finding that “the standing requirements contained in the Revocation of [Parentage] Act are constitutional,” and requiring an alleged father, in order to have standing to bring a paternity action under the Revocation of Parentage Act, to “‘not know or have reason to know that the mother was married at the time of conception,’ but imposing no similar knowledge requirement on the child’s mother” does not violate the alleged father’s equal protection rights).

E.​ DHHS Files Parentage Action

“If a child has a presumed parent and the child is being supported in whole or in part by public assistance, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s parentage if an action is filed by the [DHHS] and both of the following apply:

(a) Either of the following applies:

(i) The presumed parent, having the ability to support or assist in supporting the child, has failed or neglected, without good cause, to provide regular and substantial support for the child for a period of 2 years or more before the filing of the action or, if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the action.

(ii) The child is less than 3 years of age and the presumed parent lives separately and apart from the child. . . .^[41] 

(b) Either the court determines the child’s parentage or the child’s parentage will be established under the law of this state or another jurisdiction if the child is determined to be born out of wedlock.” MCL 722.1441(4).

F.​Extending Time to File Parentage Action

The court may extend the time for filing an action or motion under the Revocation of Parentage Act if the request for extension is “supported by an affidavit signed by the party requesting the extension stating facts that the party 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.^[42]

(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).

“MCL 722.1443(12)^[43] requires that the person requesting the extension show that [he or] she did not timely file the action because . . . one of the five listed exceptions” prevented him or her “from meeting the filing deadline[.]” Kalin v Fleming, 322 Mich App 97, 103-104 (2017) (finding that “the trial court erred by determining that [MCL 722.1443(14)] allowed an extension in this case because [the petitioner’s] affidavit did not establish an exception to the general rule that a parent must file an action to revoke parentage within three years of the child’s birth” where the petitioner asserted the acknowledged father’s “mistaken belief that he was the child’s biological father as the mistake of fact[, but] . . . [the petitioner] did not alleged that she was previously unaware of the child’s parentage, nor did she allege that a mistaken belief contributed to her delay[, and the petitioner’s] affidavit did not describe a mistake of fact that prevented her from seeking revocation of the acknowledgment of parentage within the three-year deadline”). “Whether [the petitioner’s] affidavit described a mistake of fact that excused the filing deadline is a separate question from whether [the acknowledged father’s] mistake of fact could support a timely revocation action.”⁴⁴ Kalin, 322 Mich App at 103-104.

“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.” MCL 722.1443(15). “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.” MCL 722.1443(15).

G.​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 a 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).

H.​Presumed Parent is a Necessary Party to Parentage Action

“[T]he custodial rights of a presumed father [now presumed parent, as amended by 2024 PA 29] . . . are significant and warrant due process protection.”Graham v Foster (Graham I), 311 Mich App 139, 144-145 (2015), aff’d in part and vacated in part on other grounds by Graham v Foster (Graham II), 500 Mich 23 (2017)⁴⁵ (holding that a “presumed father” is afforded the legal right of parenthood unless that presumption is rebutted in an action under the Revocation of Paternity Act, and under MCR 2.205(A),⁴⁶ the presumed father is a necessary party to that action).

I.​Ordering Genetic Testing

“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 [the Revocation of Parentage Act]. Blood or tissue typing or DNA identification profiling shall be conducted in accordance with . . . MCL 722.716.^[47] 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).

J.​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).

K.​Court Determination

1.​Refusing to Enter Order Determining Child 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). See also Demski v Petlick, 309 Mich App 404, 426 (2015) (holding that “a court may properly decline to rule that a child was born out of wedlock when the court finds under MCL 722.1443(4) that the ruling would not be in the child’s best interests”).

In determining whether to enter the order on the record, “[t]he court may consider the following 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).

“Given the discretion afforded to a trial court under MCL 722.1443(4) generally, and under MCL 722.1443(4)(h)^[48] 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.

“The court shall state its reasons for refusing to enter an order [determining a child is born out of wedlock] 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 Paternity and Entering Order of Filiation

The court may “[m]ake a determination of parentage and enter an order of filiation as provided for under . . . MCL 722.717, or a parentage order.”

“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 Act] 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”).

L.​Authority to Enter Custody or Parenting Time Orders

Although “neither MCL 722.717 [of the Paternity Act] nor MCL 722.1445 [of the Revocation of Parentage Act] explicitly provides a trial court with the authority to enter child custody or parenting-time orders in conjunction with the entry of an order of filiation,” where a “plaintiff’s complaint . . . present[s] a child custody dispute, . . . upon making a determination of paternity, [a] trial court ha[s] authority under [MCL 722.27(1) of] the Child Custody Act to enter orders regarding child custody and parenting time.” Demski v Petlick, 309 Mich App 404, 440, 443-444 (2015).

M.​Child Conceived After Nonconsensual Sexual Penetration

The court must “[m]ake a determination of paternity regarding an alleged father and enter an order of revocation of parentage for that alleged 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)(d). “MCL 722.1445(2) allows a mother to bring an action to revoke an [affidavit of parentage], without reference to a timeframe.” Blackman v Millward, ___ Mich App ___, ___ (2024) (holding that the three-year statute of limitations in MCL 722.1437 does not apply to actions under MCL 722.1445(2) “where a rape victim bears the child of her assailant,” because “biological identity is not at issue, [and circumstances] are fundamentally different than the circumstances applicable to [MCL 722.1437], where biological identity is the central question”).⁴⁹

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 not require a person filing an action under MCL 722.1445(2) to post money or surety with the court for the costs of the action and attorney fees if the person does not prevail. MCL 722.1443(13). However, 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); see also Blackman, ___ Mich App at ___ & n 4.

N.​Standard of Review

The Court of Appeals “reviews a trial court’s factual findings in proceedings under the [Revocation of Parentage Act] 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, 329 Mich App at 253, citing Parks v Parks, 304 Mich App 232, 237 (2014).