By: Lori T. Williams, Owner/Managing Attorney of Your Legal Resource, PLLC
Attorney Andrew Cohen is somewhat of a trailblazer, having filed the first revocation of paternity case in Oakland County, Michigan. He was also one of the first attorneys to go to trial on such a case under the new law. The Revocation of Paternity Act, signed into law by Governor Snyder on June 12, 2012, gives biological fathers who are not married to the biological mother the right to bring an action in court seeking to determine paternity of one or more children.
Cohen notes, "under the prior Paternity Act of 1956, if a woman was married at the time of conception or birth, or if another man executed an Acknowledgement of Parentage holding himself out to be the father, the actual biological father had no legal rights to seek custody or parenting time for his biological child(ren). The rationale of the original law was to preserve the sanctity of marriage. However, due to the existence of non-traditional families in this day and age, the Michigan legislature has attempted to modernize the law and create rights for biological fathers, and also allow mothers, 'presumed fathers', 'acknowledged fathers', and the Department of Human Services to bring Paternity actions before the court."
The Revocation of Paternity Act defines certain terms in MCL 722.1433:
REVOCATION OF PATERNITY ACT (EXCERPT)
Act 159 of 2012
(1) "Acknowledged father" means a man who has affirmatively held himself out to be the child's father by executing an acknowledgment of parentage under the acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to 722.1013.
(2) "Affiliated father" means a man who has been determined in a court to be the child's father.
(3) "Alleged father" means a man who by his actions could have fathered the child.
(4) "Presumed father" means 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.
(5) "Order of filiation" means a judicial order establishing an affiliated father.
(6) "Title IV-D case" means an action in which services are provided under part D of title IV of the social security act, 42 USC 651 to 669b.
MCL 722.1437 provides who can bring an action for revocation of an acknowledgment of parentage, and the criteria for doing so:
REVOCATION OF PATERNITY ACT (EXCERPT)
Act 159 of 2012
Action for revocation of acknowledgment of paternity; filing; affidavit; order for blood or tissue typing or DNA identification profiling; forwarding copy of order to state registrar; vacating acknowledgment of parentage; amending birth certificate; representation by attorney not required.
(1) The mother, the acknowledged father, an alleged father, or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage. An action under this section shall 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. The requirement that an action be filed within 3 years after the child's birth or within 1 year after the date the acknowledgment is signed does not apply to an action filed on or before 1 year after the effective date of this act.
(2) An action for revocation under this section shall be supported by an affidavit signed by the person filing the action that states facts that constitute 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
(3) If the court in an action for revocation under this section finds that an affidavit under subsection (2) is sufficient, the court shall order blood or tissue typing or DNA identification profiling as required under section 13(5). The person filing the action has the burden of proving, by clear and convincing evidence, that the acknowledged father is not the father of the child.
(4) The clerk of the court shall forward a copy of an order of revocation entered under this section to the state registrar. The state registrar shall vacate the acknowledgment of parentage and may amend the birth certificate as prescribed by the order of revocation.
(5) Whether an action for revocation under this section 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 for revocation.
"Since the new law allows biological fathers who really want to play an active role in their child's life an opportunity to do so, I am passionate about assisting these deserving men through the legal process," says Cohen.
The case that inspired the legislature to change the law involved Daniel Quinn, a Michigan man who sought custody of his child for the last 5 years. He fathered a child with a woman who claimed not to be married at the time. The biological father lived with the biological mother and their child for nearly 3 years, until she returned to her estranged husband and stopped allowing the biological father to see the child. At some point, the woman's husband left and she was convicted of using the child to sell drugs. At that time, the law did not allow the biological father the right to seek custody in court, and his daughter was placed in foster care rather than with him. Click here and here for more information on the Quinn case and background.
Cohen's first Revocation of Paternity Act client was a man who fathered a child with a woman over 9 years ago. The woman left the biological father after she became pregnant, and returned to her abusive ex-boyfriend. The woman and the ex-boyfriend, both knowing about the biological father, initially desired to keep the biological father out of their lives. Therefore, the ex-boyfriend signed an Acknowledgement of Parentage within days of the child's birth. This cut off any legal right for the biological father to seek a relationship with his child, yet the child's mother allowed him to spend time with the child during the first two years of the child's life. He has been fighting to have legal standing as the child's father ever since. Although he was able to seek relief in Court under the new RPA statute, the Judge in her discretion chose not to revoke the prior Affidavit of Parentage, because she felt it was not in the best interests of the child to disrupt the family unit. The Case is currently on appeal to the Michigan Court of Appeals.
According to Cohen, "there are many pitfalls with the Revocation of Paternity Act as written. These issues must be ferreted out by higher courts. Judges have great latitude to use their own discretion on how to apply to revocation factors."
MCL 722.1443(4) indicates that a court may refuse to enter an order setting aside a paternity determination if the court finds evidence that the order would not be in the best interest of the child. "The act does not define which party has the burden to show that what would be in the child's best interest," says Cohen. Furthermore, the child's best interest is defined by consideration of the following factors:
a. Whether the presumed father is estopped from denying parentage because of his conduct.
b. The length of time the presumed father was on notice that he may not be the child's father.
c. The facts surrounding the presumed father's discovery that he may not be the child's father.
d. The nature and relationship between the child and the presumed or alleged father.
e. The age of the child.
f. The harm that may result to the child.
g. Disruption of the father child relationship.
h. Any other factor that the court determines appropriate.
Cohen notes that, "the issue is that the factors only discuss a 'presumed father' and not an 'acknowledged father'. An acknowledged father is a man who has affirmatively held himself out to be the child's father by executing an acknowledgement or parentage. A Presumed father is the child's father by virtue of his marriage to the child's mother at the time of conception or birth."
According to Cohen, there are a number of potential problems with the RPA:
1. The differential treatment of a mother as opposed to the presumed father created an equal protection constitutional challenge.
2. The Judge has great discretion to determine the best interest of the child.
3. The RPA factors only discuss a presumed father and not an acknowledged father.
4. The RPA does not define who has the burden to demonstrate what would be in the child's best interest.
5. The RPA does not define whether the burden is by clear and convincing evidence which is an extremely high standard, or the lower preponderance of the evidence standard.
6. The Equitable Parent Doctrine, that being where a non-biological father and child establish a parent child relationship, is in conflict with the RPA.
7. A biological father must not have knowledge that the mother was married at the time, despite his knowledge that the mother is estranged from her husband. This is because a marital affair remains illegal, albeit unenforced in the state of Michigan.
"These and other issues must be determined by case law. I am excited that I am in a position to play a key role in shaping father's rights in the state of Michigan by pursuing these actions for well-deserving fathers", says Cohen.
Andrew H. Cohen is a partner in the Southfield law firm of Cohen Law Office, PC. Andrew comes from a long line of personal injury attorneys, and started his legal career following that path, but quickly found his true passion and aptitude in family law, where he handles divorce, custody, paternity, and child and spousal support matters.