Case Law Development: Michigan Supreme Court Denies Paternity Action to Father Listed on Birth Certificate and Acknowledgment of Paternity
The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated. Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce. Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage. In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.” The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."

The dissenting opinions had strong words for the majority:

In this case, the majority again evidences a rigid adherence to wooden
strictures such as the presumption of legitimacy even where, as here, the purposes
of the presumption are not served. The majority has exhibited a consistent pattern
of ruling against putative fathers who seek to exercise their due process rights with
respect to children they claim as their own. (dissent by Kelly, J.)

In adopting defendant’s position that the divorce judgment was insufficient
to establish that her child was born out of wedlock, the majority renders a default
judgment in this case meaningless; it condones and encourages gamesmanship by
a party to a child custody proceeding; and it allows a party to prevail, in significant
part, because of that party’s own delinquency in failing to participate in an earlier
judicial proceeding. (dissent by Markman, J.)


This is from July 2006. Even the SC of MI has a tough time with this stuff. And in this case is there not clear and convincing evidence that this child is not a product of the marriage?

KA,

This child has a father . . . and he has contacted the mother and made his request for access to HIS CHILD.

That is a fact.

Does he have a legal right to see the child? It depends on where he lives . . . and that is a depravity.

I'm glad your life turned out to be all roses, but your case doesn't prove a rule . . . it just proves what your truth is. I think it is wonderful that you had a man step up and raise you as his own. It takes a big man to do such a thing and it is apparent that you have benefited for that situation.

I just don't get why you think that the bio dad should be summarily dismissed. Maybe this is a man woman thing?

I just don't see how this man is evil, whist the wife and her husband are blessed. It doesn't make a lick of sense to me, but perhaps I'm daft.

Paternity fraud is rampant in the United States, triggering legislation and legal challenges in more than a dozen states, according to family law attorneys and fathers' rights activists.

At issue: Men claim women are getting away with trickery -- DNA evidence may show a man is not the father, but the courts are still forcing him to pay child support anyway.

"This is the new underdog," said Michigan family law attorney Michele Kelly, who represents mostly men tangled in paternity disputes. "I was a staunch feminist. I marched with Gloria Steinem. But the new victims in America are working men. All they are is a mule train."

Most recently, Kelly secured a victory for a Michigan man who had paid an estimated $80,000 in child support over 15 years to his ex-wife, despite DNA evidence that proved he wasn't the father of their first son. On March 23, after a bitter court battle, the case settled with the ex-wife agreeing to have all child support canceled. Richardson v. Luria, No. 91-7019-DM (Bay Co., Mich., Cir. Ct.).

The woman's lawyer, Robert Dunn, a solo practitioner based in Bay City, Mich., was unavailable for comment.

Meanwhile, Kelly, of Kelly & Kelly in Northville, Mich., said this case is just the tip of the iceberg.

"One case is just more outrageous than the next," she said.

According to a recent study in New Hampshire, as many as 30 percent of those paying child support are not the biological fathers of the children being supported. California is also expected to release results from a similar study later this year.

http://www.law.com/jsp/article.jsp?id=1144414531354

McBecca...

No argument speaks more clearly or soundly on this thread to me than that of KaylaAndy's, herself an "other child"...I pray that you will listen to her very wise insight...

Mrs. W

I'm sorry MEDC - in what way is that relevant?

CN -

The child already has a LEGAL father -

My life did NOT turn our all roses. When I found out about my bio parentage, I was physically sick, then severely depressed for three years and cut off all ties to my mother while I decided how to cope. It was not an ideal situation. However, it happened AFTER I had a strong enough moral base to not have confusion about what's in the best interests of a child in nasty situations. And I had no desire to exalt OM to the official position as "father" in my life. I have a father. As imperfect as he is, and all the mistakes he made as my father, he IS my father, as certainly as if he had been the bio.

I'm saying this child needs a chance at innocence - with ONE mommy and ONE daddy. With someone qualified to offer a strong moral compass; with siblings who also share that innocence.

And Bio dad is not the best equipped to step up and provide that.

It's sad that the results of an affair with a married woman are biting him so hard - and it's unfair. I'm not arguing for fairness. It isn't possible with adultery or murder.

But OM is NOT thinking of what's best for the child or he'd back off!

I don't like it one bit that McBecca glorifies this man's qualifications, not here, not in her own mind. That's fog talk and we should all recognize it as such. And it lowers her qualifications to be acting in the best interest of the child every bit as much as the OM's actions in initiating contact after the lawyers and everyone have told him that he's out of this child's life. He's still seeking to sever this family's fragile cord, harming his own child and other innocent children. That is evidence enough for me to say that this man is LESS qualified to be in this child's life, raising her as his own, than the man who currently LEGALLY fills that role.

Texas statutes provide that, where a presumed father exists, an action brought to establish paternity in one other than the presumed father must be brought within four years of the child's birth. Where no presumed father exists, no such time limitation applies. In this case, the court had terminated the parental rights of Mother and Presumed Father (to whom Mother was married when child was born). Biological Father then brought an action to establish his paternity, which the trial court dismissed as being time barred, as it was brought after four years

Relevant to me in that I see what is happening in this case is just another type of fraud against a father. BK, I get that you do not agree with me, as I do not with you... but there are legions of people out there that are tired of the kind of [email]cr@p[/email] that allows a parent to get away with abusing their parental rights. I see denying a parent access to a child an abuse of parental power. I'm posting that which I find interesting and what I see as germane to the topic of parental rights.

Talked to BH. He is not happy. He was actually quite angry. I need to pray. It seems like that's all I do these days. Pray, Pray and Pray some more.

There is no "win-win" here, I realize that. Just a degree of losing.

Thank you everyone for your posts. I truly appreciate your views and statements here. Ultimately this is my decision and I have to consider everyone but mostly my family. OM will never understand my reasons for keeping my family together. Not until he has other children himself.

Mkeverdaycnt, OM and I knew what we were doing. We had unprotected sex the entire time, he wanted a child and after 6 years of IF I never thought I could become pg. Sure I regret it now but it is too late for that. I now just need to think of the future for my children, all 3.

Thanks,
Becca

See most of the so-called progress on the "paternity presumption" is directed towards allowing the BH's to escape financial responsibility for the OC NOT really trying to insure biological rights to OM's.

BTW, S. Markman, Michigan Supreme Court justice is an idiot
and Kelly on the other hand is a good jurist that in her dissent indicates that the "purposes of the presumption" in this particular case were not served by the decision. The general order of legal arguments are 1) The law 2) Case Law 3) public policy. Kelly wanted to hold a differing opinion in that case because the child was being raised by the OM and had been for four years. She WAS swayed by a public policy argument to carve out an exception. The "paternity presumption" was being used and abuse by the mother to defeat this poor father that had taken on the responsibility of fatherhood for 4 years. I presume the mothers former husband was long gone by that time. It's a shame for that child the hard and fast rule couldn't be overlooked by the majority in that case; but it shows how ingrained and absolute the presumtion is. I think Kelly if she were to be hearing McBecca's case would not be swayed by any public policy argument because the "paternity presumption" is being utilize dead on in favor of the Marriage of Mr. and Mrs. McBecca. The case likely would not even be granted a supreme court hearing...it's pretty cut and dry...in Michigan, for now.

well, from what I have read about Texas... the oM has 4 years to contest this... and clear and convincing evidence already exists that your H is not the father.
And you say the OM wanted a baby.... did you tell him you were leaving your H? That you were getting a divorce?

Like I said, this was not just a one-night stand and perhaps it is "fog" talk but we wanted to have a real relationship following my D. He knew my chances of having another child were nearly impossible, he was willing to give that up and just become step-Dad to my two DD.

However, BH did not file for D. We started counseling, OM and I ended things BUT I was already pregnant and didn't know it.

McBecca

Even in states where OM can get standing my research indicates that even after paternity is established such visitation and custody are generally severly restricted in favor of the marital partners, "in the best interests of the children" analysis. Such OM's are treated as interlopers and don't receive a tremendous amount of respect from the courts.

W

CN,

It is wierd to be in a position to disagree with you. I can't say I like it much.

As much as I wanted to be a part of my daughters life, and insited it be that way. I would have stoped short if she(OW) was married and thier was a good capable man to act to role as dad.

As much as it would have killed me, I would have let go.

This poor woman is a wreck, she needs the drama to settle down and the only way for that to happen is time away and out of C with OM. This child is young and is not in need of dad just yet. With that in mind, if she were to focus on the issues of herself and her H for at least a year, that would be enough time for her to deal with the withdrawl she will face/facing.

I would see the courts granting visitation to the OM in this case to be wrong and futhering the damage to this family and a slap in the face to Mecbecas H.

Mecbeca so far appears to be reaching for help to stay with her H. I for one belives she IS trying to find a reason to stay with her H. That may be the wrong approch in many peoples eyes, but I WILL GIVE HER CREDIT for at least considering to keep her family together.

If OM really wants contact with the child, then I say let him fight for it. I suspect in time, he will also see that it is in the best interest of this child to let go.

If I had any thoughts that Mecbeccas H was going to act ill twored this child, my position would be MUCH differnt.

Kind Regards,
TH

So, the BH was going to file for divorce and you informed the OM about this prior to a PA starting. So, the OM did not have any physical relationship with you until after you told him that H was filing for divorce. He then wanted to be married to you, accept your children after your H DIVORCED YOU, and accept that you couldn't have any more children.
Gee everybody, this guy sounds like the scoundrel you have all made him out to be!!!

McBecca...a "real" relationship after your divorce with your affair partner that truly facilitated your divorce is not and never will be a real relationship. It's a relationship built upon lies and deceipt. Statistics prove this. You will VERY VERY likely end up alone without OM or BH which ends up hurting everyone involved INCLUDING you.

You've got a heck of a man in Mr. McBecca. Willing to take on the resposibility of OC for the betterment of your entire family. Maybe, upon full reconciliation, he'll be willing to discuss and POJA with you allowing OM some knowledge and access to his bio-child through him. Give him the chance to be the man of your dreams, your hero and the hero of your family. Recovered marriages can be incredible marriages. Affair marriages are doomed from the start. YOUR best hope of happiness is with Mr. McBecca....I guarantee it.

Mr. Wondering

McBecca...Will you bring your husband here? He REALLY needs support at a time like this...Will You Do This For Him?

Mrs. W

Thank you TH - I have the unexpected privilege of agreeing with you.

That is the best thing I've seen you write - and the most well reasoned! Spoken like a real father!

McBecca - please read this post again and again - and then read how passionate TH is about being the father to the OC no matter what (on the pregnancy board) - he speaks as a man who loves being a daddy - but here recognizes he would step aside for the best interests of a child who has the chance at having an in-tact family. Your OM is no such father-material!

Thank you TH!

TH, tell Mrs.TH how proud we are of you. You have come so far. This was by far the most compassionate post I have seen from you. (and let's not forget you and KA agreed on something!)

not time to call me during the day nevermind even post here!! but he has ready a few of the links I've sent to him etc

McB