The revocation of paternity act was enacted and became immediately effective on June 12, 2012. The new procedure for revoking paternity allows for mothers, alleged fathers, or affiliated fathers to bring an action to revoke a determination of paternity. Each potential petitioner has to satisfy different tests.
The mother may file under one of two options. Under the first option, the mother must identify the alleged father by name and the presumed father. The alleged father and the mother must have at some time mutually and openly acknowledged a biological relationship between the alleged father, AND the action must be filed before the child is three years old. Under the second option, the mother must identify the alleged father by name. Additionally, where the presumed father has the ability to pay and without good cause, either
- the presumed father has failed or neglected to provide regular and substantial support for two years; or
- has failed to substantially comply with a support order for two years; or
- the child is less than three years of age and the presumed father lives separately and apart from the child.
These are fairly restrictive requirements.
The requirements for a presumed father are more lenient. A presumed father is a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth. MCL 722.1433(4). In order to bring a Petition, a presumed father may file to exclude a child from his marriage if he files before the child turns three, or if he raises the issue in a divorce or separate maintenance action between the presumed father and the mother.
An alleged father is a man who could have fathered a child. MCL 722.1433(3). For an alleged father to file to exclude a child from a marriage, he must do so under one of three options.
- The alleged father must show he did not know or have reason to know that the mother was married at the time of conceptions, and the presumed father, alleged father, and mother at one time mutually and openly acknowledged a biological relationship between the alleged father and the child, and the child is not yet three, and the child’s paternity is or will be determined by a court; or
- The alleged father must show that he did not know or have reason to know that the mother was married at the time of conception and either
- The presumed father, having the ability to support the child has failed and neglected without good cause to provide regular and substantial support for two years
- Or has failed to substantially comply with a support order for two years; or
- The child is less than three, and the presumed father lives separately from the child, and the child’s paternity is or will be established by court.
One interesting fact is that a judgment under the RPA does not relieve a man from a prior support obligation. MCL 722.1443(3). This is consistent with the fact that you cannot retroactively contest child support, one may only contest it going forward.
One outstanding issue yet to be worked out by the courts is the future of Serafin motions. While the RPA was enacted in June 2012, so portions of it did not become active until June 12, 2014. As such, the common law relief of a Serafin motion, based on the case Serafin v Serfin, may no longer be available after that time. These motions allowed for the presumption of legitimacy of marriage to be rebutted based on clear and convincing evidence. Some have argued this relief was intended to be concurrent despite the fact that the section of the RPA provides a different remedy for the same problem. This has yet to be clarified by courts.
If you or a family member are facing an issue with respect to paternity, it is important to hire an experienced attorney who can navigate the ever changing contours of this complex law. To retain Garmo & Kiste, PLC, for assistance in these matters call us at (248) 398-7100 for a free consultation or contact us with a private message. We are experienced Michigan attorneys with offices in Troy, MI.