Friday, September 28, 2012

Revocation or denial of fatherhood (paternity) an age old story!



Who would have thought.

.
WHAT DO GENESEE COUNTY JUDGE ARCHIE HAYMAN AND POP STAR JUSTIN BIEBER HAVE IN COMMON?

Justin Bieder The pop star told his Twitter followers that he's even addressing the paternity suit brought against him in late 2011. [13]

For Judge Hayman he is challenging paternity to two children .A hearing date in Oakland County, where the case was transferred, has been set for Oct. 10.[1]

This article assembled here by Terry R. Bankert a Flint MI Divorce, Bankruptcy and Paternity Lawyer. 810-235-1970

Ketchmark said Hayman is required to seek revocation of the affidavits of parentage before the court can consider DNA testing.[11]


Genesee Circuit Judge Archie Hayman wants DNA testing to determine whether he is the father of two children born out of wedlock.
And he wants the results of that paternity testing sealed from public view.[11]

But the Flint attorney suing the judge for more than $4 million in child support and other damages says not so fast.[11]

Flint attorney Denise Ketchmark opposed both of Hayman's requests in filings today, responding to a flurry of motions filed by Hayman's attorney in Genesee Circuit Court Wednesday. [11]

Who would have thought. http://goodmorningflint.blogspot.com/2012/09/fatherhood.html

Our society has changed and the law changes with it. The number of nonmarital births in recent decades  has led to an increased focus on the fathers of  these children. Many of these alleged ( reputed  or putative) fathers of nonmarital children ( children declared to be born out of wedlock) seek  recognition of their legal rights and expanded roles  in the upbringing of their children.[1] Some do not.

CHIPPING AWAY
These legal rights are now  expanded through new laws like Michigans PA 159 MCL 722.1431 chip away at the   presumption the husband is the father or that if you sign an acknowledgement of paternity you have assumed fatherhood forever.


A  child now could be trapped in litigation to determine paternity. Newly born children could be subjected to tests to establish their legitimacy, with the slightest challenge to the child's legitimacy resulting in the administration of these tests and protracted legal proceedings. All the while, the child is in "legal limbo."[10] I think the court will work had to keep this from happening to children the focus of a paternity litigation.


Michigan has recently enacted legislation to  increase the rights of putative or alleged fathers and to allow acknowledged father sto sidestep responsibility in Public Act 159 MCL 722.1431 et al.

That prior to June 12 2012 Actions under the Paternity Act Could only  be brought by the mother; the father; a child who became 18 years old after August 15, 1984, and before June 2, 1986; or, in certain circumstances, the DHS. MCL 722.714(1). MCL 722. 1431 et al added new classifications

That the history of the Paternity Act and the older bastardy act is one of confusion concerning the civil, criminal, or quasi-criminal nature of the proceedings. See Romain v Peters, 9 Mich App 60, 155 NW2d 700 (1967). However, a paternity action is generally considered to be civil in nature. Bowerman v MacDonald, 431 Mich 1, 427 NW2d 477 (1988).

In law, paternity is the legal acknowledgment of the parental relationship between a man and a child usually based on several factors. [12]

At common law, a child born to the wife during a marriage is the husband's child under the "presumption of legitimacy", and the husband is assigned complete rights, duties and obligations as to the child. The presumption, however, can be rebutted by evidence to the contrary, at least prior to a formal court ruling involving the putative paternity (often this is a decree of divorce, annulment, or legal separation). Jurisdictions differ widely on when a judgment establishing paternity or a support obligation based on the presumption can be set aside on the grounds that the husband was not in fact the father.
In the case of an unwed mother, a man may come forward and accept the paternity of the child, the mother may petition the court for a determination, or paternity can be determined by estoppel over time.[12]


Ketchmark has asked that the judge deny Hayman's request for DNA testing, saying he waived the right to blood or genetic tests to determine if he is the biological father when he signed the affidavits of parentage.[11]



THAT  MCL 722.1431 generally  cited as the "revocation of paternity act"   gives standing in these revoking paternity causes  to  the acknowledged father   and authorizes the court to review and revoke the paternity of the minor child.

The judge has not admitted paternity in any filings tied to the lawsuit and his attorney has told The Flint Journal, “We’re real confident at least one of the children is going to turn out not to be his biological child."[11]



THAT 722.1443 Sec. 13.(2)generally authorizes a  court to  Revoke an acknowledgment of parentage.


MOVING PARTY IS MOVANT


THAT MOVANT  IN THE HAYMAN CASE IS A 722.1433 Sec. 3.(1) generally. "Acknowledged father"  which 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.

THAT generally the burden of Clear and Convincing evidence is on the Movant .


ACKNOWLEDGED FATHER SECTION SEVEN

THAT  the acknowledged father has held himself out to be the  the child's father by executing and acknowledgement of paternity .

THRESHOLD FOR REVOKING ACKNOWLEDGEMENT OF PARENTAGE

 THAT 722.1437 Sec. 7 (1)generally. The acknowledged father, 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 06/12/2012.

THAT 722.1437 Sec. 7 (2) generally an action for revocation  of an Acknowledgement of Paternity under this section shall be and is supported by an affidavit signed by the movant  filing the action that states facts that constitute 1 of the following which the movant argues happened and will prove:

(a) Mistake of fact.


(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.


(c) Fraud.


(d) Misrepresentation or misconduct.


Hayman claims in a court filing that the affidavits were obtained "because (Ketchmark) hid the truth of the children's paternity" and were obtained by misconduct and duress.[11]




(e) Duress in signing the acknowledgment.


THAT 722.1437 Sec. 7 (3) generally.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).

THAT in 722.143 Sec 7 (3) generally 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.

IF THE MOVANT PREVAILS


THAT  IN 722.1437 Sec. 7 (4) generally 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.

ORDERING OF DNA TEST SHALL BE ORDERED UNDER THIS ACT

THAT IN 722.1443 Sec. 13.(5) generally 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 this act. Blood or tissue typing or DNA identification profiling shall be conducted in accordance with section 6 of the paternity act, 1956 PA 205, MCL 722.716.

THAT THE DNA TESTING IS NOT BINDING

THAT IN 722.1443 Sec. 13.(5) generally the results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under this act.



COURT ACTION AVAILABLE AFTER THRESHOLD MET
.

THAT IN 722.1443 Sec. 13.(2)generally an action filed under this act authorizes  the court to do any of the following:

(a)THAT the court is authorized  to Revoke an acknowledgment of parentage.See 722.1443 Sec. 13.(2)(a)


(d) THAT the court is authorized  to make here a Determination of Paternity and enter an order of Filiation as provided for under section 7 of the paternity act, 1956 PA 205, MCL 722.717. See 722.1443 Sec. 13.(2) (d)


MCL 722.1443 Sec. 13.(3)generally. A judgment entered under this act does not relieve a man from a support obligation for the child or the child's mother that was incurred before the action was filed or a person from seeking relief under applicable court rules to vacate or set aside a judgment.


COURT MAY DECIDE TO NOT REVOKE PATERNITY  BUT BECASUE OF THE STATUTES CLUMSY WORDING THIS DOES NOT CLEARLY APPLY TO ACKNOWLEDGEMENT.

THAT IN 722.1443 Sec. 13.(4)generally. A court may refuse to enter an order setting aside a paternity determination or 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.

THAT IN 722.1443 Sec. 13.(4)   generally.The court  shall state its reasons for refusing to enter an order on the record.

THAT IN 722.1443 Sec. 13.(4)generally.The court may consider the following factors in deciding to not revoke paternity:

(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 might not be the child's father.


(c) The facts surrounding the presumed father's discovery that he might not be the child's father.


(d) The nature of the 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) Other factors that may affect the equities arising from the disruption of the father-child relationship.


(h) Any other factor that the court determines appropriate to consider.






PREPARED BY
Terry R, Bankert P.C.
Attorney at Law P49048
1000 Beach St.
Flint MI 485903
tel.1-810-235-1970\Http://www.attorneybankert.com




[1]
Child Welfare Information Gateway
Children’s Bureau/ACYF
1250 Maryland Avenue, SW
Eighth Floor
U.S. Department of Health and Human Services
Administration for Children and Families
Washington, DC 20024
Administration on Children, Youth and Families  703.385.7565 or 800.394.3366
Children’s Bureau  Email: info@childwelfare.gov
www.childwelfare.gov

[2]
Michigan Family Law Benchbook ch 10 (ICLE 2d ed 2006), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=10

(last updated 07/06/2012).

[3]4-30 Child Custody and Visitation § 30.02 Child Custody and Visitation
Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
CHAPTER 30 RIGHTS OF PUTATIVE FATHERS TO CUSTODY AND VISITATION
4-30 Child Custody and Visitation § 30.02

[4]

CHAPTER 64 ADOPTION LAW, PROCEDURE AND PRACTICE * , 6-64 Family Law and Practice § 64.15, § 64.15 Challenges by Birth Parents, Family Law and Practice Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

[5]

6-63 Family Law and Practice § 63.09 Family Law and Practice
Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
CHAPTER 63 PATERNITY PROCEEDINGS *
6-63 Family Law and Practice § 63.09

[6]


[7]
Michigan Family Law ch 21 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=21
(last updated 07/06/2012).
[8]
CHAPTER 63 PATERNITY PROCEEDINGS * , 6-63 Family Law and Practice § 63.02, § 63.02 Preliminary Considerations, Family Law and Practice Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

[9]
Michigan Family Law Benchbook ch 10 (ICLE 2d ed 2006), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=10
(last updated 07/06/2012).

[10]
4-30 Child Custody and Visitation § 30.02 Child Custody and Visitation

Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

CHAPTER 30 RIGHTS OF PUTATIVE FATHERS TO CUSTODY AND VISITATION

4-30 Child Custody and Visitation § 30.02
[11]

http://www.mlive.com/news/flint/index.ssf/2012/09/attorney_says_genesee_circuit.html#incart_river_default

[12]
http://en.wikipedia.org/wiki/Paternity_(law)

[13]
http://www.mtv.com/news/articles/1693606/justin-bieber-new-book-just-getting-started.jhtml


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