Acknowledged Fathers and the Revocation of Paternity Act

6.9Acknowledged Fathers and the Revocation of Paternity Act ¹

“[U]nder the Acknowledgment of Parentage Act, a man and a woman can essentially stipulate the man’s paternity. [P]aternity can be properly established only if the child is ‘born out of wedlock[.]’” Aichele v Hodge, 259 Mich App 146, 154-155 (2003).

A.Acknowledged Father

The Revocation of Paternity Act defines an acknowledged father as “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, . . . MCL 722.1001 to [MCL] 722.1013.” MCL 722.1433(a).

Under the Acknowledgment of Parentage Act, a man may be considered the natural father to a child born out of wedlock if the man joins the child’s mother in acknowledging the child as his child.² MCL 722.1003(1). Child, for purposes of the Acknowledgment of Parentage Act is “a child conceived and born to a woman who was not married at the time of conception or the date of birth of the child, or a child that the circuit court determines was born or conceived during a marriage but is not the issue of that marriage.” MCL 722.1002(b). An acknowledgment of parentage properly signed and filed with the court establishes a child’s paternity. MCL 722.1004. “An acknowledgment [of parentage] may be signed any time during the child’s lifetime.” MCL 722.1003(2).

The Court of Appeals concluded that “[n]othing in the Acknowledgment of Parentage Act requires that the man completing the acknowledgment form actually be the child’s biological father.” In re Daniels Estate, 301 Mich App 450, 456 (2013). The Court further noted in support of that observation that a man signing an acknowledgment of parentage waives certain other methods of determining that he is the child’s biological father. Id. at 456-457.

An acknowledgment of parentage may be the basis for court-ordered child support, custody, or parenting time; no further adjudication under the Paternity Act is necessary. MCL 722.1004. “The child who is the subject of the acknowledgment shall bear the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage and shall have the identical status, rights, and duties of a child born in lawful wedlock effective from birth.” Id.³

Because an acknowledgment of parentage “legally establishe[s] paternity and confer[s] the status of natural and legal father on the man executing the acknowledgment,” an order of filiation cannot be entered under the Paternity Act as long as the acknowledgment of parentage remains valid and has not been revoked. Sinicropi v Mazurek, 273 Mich App 149, 152 (2006). To revoke an acknowledgment of parentage requires filing a claim under the Revocation of Paternity Act. MCL 722.1007(h).

B.Termination of an Acknowledged Father’s Parental Rights

An acknowledged father’s parental rights may be terminated in cases of a stepparent adoption only when the acknowledged father, for a period of two years or more before the petition for terminating his parental rights was filed, has had the ability to support the child and has failed to do so or has had the ability to communicate or visit with the child and has failed to do so. MCL 710.51(6)(a)-(b). An acknowledged father’s parental rights may also be terminated in accordance with the provisions in the Juvenile Code, MCL 712A.19b. Similarly, the parental rights of a putative father who has established a custodial relationship with a child or who has, according to his ability, provided substantial and regular support to the child or the child’s mother during the 90 days before being served with notice of the petition to terminate his parental rights, may only be terminated under the circumstances governing stepparent adoptions, MCL 710.51(6), or under the Juvenile Code, MCL 712A.2.

C.Setting Aside an Acknowledgment of Parentage

MCL 722.1437 governs setting aside an acknowledgment of parentage under the Revocation of Paternity Act. MCL 722.1435(1).⁴

“The [child’s] mother, the acknowledged father,^[⁵] an alleged father,^[⁶] or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage.” MCL 722.1437(1). An action to revoke an acknowledgment of parentage under MCL 722.1437 “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.” MCL 722.1437(1).

A petition seeking the revocation of an acknowledgment of parentage must be accompanied by an affidavit sufficient to establish one of the following: (1) mistake of fact, (2) newly discovered evidence that with due diligence could not have been discovered before the acknowledgment of parentage was signed, (3) fraud, (4) misrepresentation or misconduct, or (5) duress in signing the acknowledgment. MCL 722.1437(4)(a)-(e). If the affidavit is sufficient the court must order genetic testing in accordance with MCL 722.1443(5). MCL 722.1437(5).

The genetic testing results are meant to assist the court in its determination under the Revocation of Paternity Act, but the results are not binding on the court. MCL 722.1443(5). The person who signs the petition to revoke an acknowledgment of parentage “has the burden of proving, by clear and convincing evidence, that the acknowledged father is not the father of the child.” MCL 722.1437(5).

“[A]n order revoking an acknowledgment of parentage constitutes an order ‘setting aside a paternity determination’ and, therefore, is subject to a best interest analysis under MCL 722.1443(4).” Helton v Beaman, 497 Mich 1001 (2015).

D.Court’s Refusal to Enter an Order Revoking an Acknowledgment of Parentage

“A court may refuse to enter an order . . . revoking an acknowledgment of parentage . . . if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4).⁷ Factors a court may consider when deciding whether to enter an order revoking an acknowledgment of parentage are set forth in MCL 722.1443(4)(a)-(h).⁸ If the court refuses to enter an order revoking an acknowledgment of parentage, it must state its reasons for the refusal on the record. MCL 722.1443(4).

²The Affidavit of Parentage form, DCH-0682, is the form used to establish parentage under the Acknowledgment of Parentage Act. See MCL 722.1008.

³“‘MCL 722.1004 affords the child the full rights of a child born in wedlock, [but] the statute does not grant a putative father who acknowledges paternity the same legal rights as a father whose child is born in wedlock.’” Sims v Verbrugge, 322 Mich App 205, 211 (2017), quoting Eldred v Ziny, 246 Mich App 142, 149 (2001). “[A]cknowledgment of paternity under MCL 722.1003 . . . merely entitles the parties to seek custody, support, or parenting time without the need to first obtain an order of filiation under the Paternity Act, MCL 722.711 et seq.” Eldred, 246 Mich App at 148-149. “[T]he Child Custody Act is the ‘exclusive means’ of pursuing child custody rights . . . .” Id. at 148, quoting Van v Zahorik, 460 Mich 320, 328 (1999).

⁵ MCL 722.1433(a) defines an acknowledged father as “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, . . . MCL 722.1001 to [MCL] 722.1013.”

⁶ MCL 722.1433(c) defines an alleged father as “a man who by his actions could have fathered the child.”

⁷The court may also refuse to enter orders to set aside a paternity determination, to determine that a genetic father is not a child’s father, or to determine that a child was born out of wedlock. See MCL 722.1443(4).