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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Good Morning Flint! PATERNITY- Love me now or pay me later. 235-1970

09/22/12 PATERNITY. LOVE ME NOW OR PAY ME LATER!


Paternity- Love me now or pay me later.

In Paternity Cases the Judgement of Filiation is the controlling court order.

The Friend of Court recieves and disburses payments in the same manner as divorce cases and acts on requests for enforcement. 

The State Court Administrative Office has developed mandatory guidelines for determining Child Support State Wide 

The variables are the number of children, the incomes of the parents, and the number of overnight visits each parent spends with each CHILD. CHILD SUPPORT Calculations are readily available to every attorney.

 This  review of the law of paternity and child support posted here by Flint Divorce, Paternity, Child Support Attorney Terry Bankert  235-1970

Overview.

Actions to determine paternity may be brought under the Paternity Act. Parents may also sign an acknowledgment of parentage under the Acknowledgment of Parentage Act, and a putative father may file a notice of intent to claim paternity under the Adoption Code, which raises a rebuttable presumption of paternity. A putative father may also establish paternity under the Revocation of Paternity Act.[1]

Putative fathers may not seek custody under the Child Custody Act of 1970 without a prior acknowledgment of paternity or order of filiation. [1]

Actions under the Paternity Act. .

Parties; standing. 

.

Venue; limitations. 

Venue—in the county where the mother or the child resides. If the mother and child do not reside in Michigan, in the county where the putative father resides or is found.

The action may be instituted while the child’s mother is pregnant or until the child is 18 years old. No trial can be held until the child is born, unless the defendant parent consents.[1]

Order of filiation. 

The court must enter an order of filiation if determination of paternity is made by the court, by the defendant acknowledging paternity, or by entry of a default judgment.[1]

The order of filiation must

• set child support pursuant to the child support formula
• include the health care related provisions of the child support formula
• unless Medicaid paid the confinement and pregnancy expenses or the pregnancy or complication of the pregnancy was the result of a battery, apportion the reasonable and necessary expenses of the mother’s confinement and pregnancy between the parents in the same manner as the child support formula apportions medical expenses; the father is no longer solely responsible for confinement costs and necessary expenses, except in the Medicaid or battery scenarios
• if applicable, direct payments of a deceased child’s funeral expenses
• establish custody and/or parenting time—must include specific provisions if there is no dispute over custody or parenting time; if disputed, the court should enter an order for support and a temporary order for custody and parenting time
• provide that, if the father marries the mother after the birth of the child and provides documentation of that marriage to the Friend of the Court, the father’s obligation for unpaid confinement and pregnancy expenses will be abated (this is a new requirement for orders of filiation)[1]

As a support order, the order of filiation must also contain provisions required by court rules and the Support and Parenting Time Enforcement Act (SPTEA).[1]

Support. 

• amount—determined by the Michigan Child Support Formula (MCSF), unless applying the formula would be unjust or inappropriate (same rules as for other support orders)
• health care expenses, etc.—a support order must include provisions related to health care; specifically, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children (it is presumed that $289 per child per year will be spent on ordinary expenses); this annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment [1]
• postmajority support—the court may order support for a child between the ages of 18 and 19¹/₂ who regularly attends high school full-time with reasonable expectation of graduation and lives full-time with support payee or at an institution[1]
• support for period before filing—a child support obligation is only retroactive to the date the paternity complaint was filed; the court may only set an earlier date if it finds that the defendant avoided service of the suit, used threats or physical coercion to prevent the complainant from filing the action, or otherwise delayed the imposition of the support obligation; the former provisions for support dating back to a child’s birth in certain circumstances have been removed[1]
• retroactive modification—not permitted[1]

After an order of filiation is entered, the court has continuing jurisdiction to provide for, change, and enforce the order’s provisions regarding custody, support, or parenting time.[1]

Enforcement. 

Orders of filiation are enforceable under the SPTEA and the Uniform Interstate Family Support Act (UIFSA) (interstate cases).

The Acknowledgment of Parentage Act.

Procedure.

If the mother and father of a child born out of wedlock sign an acknowledgment of parentage form and the signatures are notarized, this establishes parenthood without Paternity Act proceedings. On execution, the parties consent to the court’s general jurisdiction regarding child support, custody, or parenting time. After execution, the mother is presumed to have custody of the minor child unless the parents agree otherwise in writing or the court orders otherwise.[1]

The form can be signed at any time during the child’s life.

A minor parent may sign an enforceable acknowledgment of parentage, although the court may appoint a next friend or guardian ad litem for the minor parent. [1]

Revocation.

May be filed as an original action in the circuit court where the mother or the man resides or, if neither is in the state, where the child resides.[1]

May also be brought as a motion in an existing action for support, custody, or parenting time.

Affidavit—must be supported by an affidavit showing mistake of fact, newly discovered evidence that could not by due diligence have been found before the acknowledgment was signed, fraud, misrepresentation or misconduct, or duress in signing the acknowledgment. [1]

Blood or genetic tests—If the court finds the affidavit sufficient, the court may order blood or genetic tests at the claimant’s expense or take other appropriate action. [1]

The filing party must prove by clear and convincing evidence that the man is not the father and revocation is proper after considering the equities of the case. [1]

All acknowledgments signed before June 1, 1997 (the effective date of the act), remain effective and the same revocation procedures apply.

[1]

Under the Revocation of Paternity Act, a court may determine a child’s paternity and set aside acknowledgements, determinations, and judgments relating to paternity.[1]

 An action under the act may be filed as an original action in the circuit court where either the mother or the child resides or, if neither is in the state, where the child was born. If, however, there is an existing action for support, custody, or parenting time of the child, the action must be brought by motion in that action. MCL 722.1443(1).[1]

A complaint or motion contesting an order of filiation or acknowledgment of parentage must be filed within the later of three years after the child’s birth or one year after the date of the order or the date the acknowledgment of parentage was signed. MCL 722.1437, .1439.[1]

The time limits do not apply to actions filed on or before June 12, 2012. MCL 722.1437, .1439, .1441. Moreover, common-law actions to determine paternity are available until two years after the act’s effective date. MCL 722.1443(10). The court may, on request, extend the time for filing an action or motion under the act. MCL 722.1443(12).[1]

An acknowledgment of parentage under this act, MCL 722.1001 et seq., establishes paternity and can be the basis for court-ordered support, custody, or parenting time without adjudication under the Paternity Act. MCL 722.1004; Hoshowski v Genaw, 230 Mich App 498, 584 NW2d 368 (1998).[1]

A child has an inherent right to the support of his or her natural parents. MCL 722.3(1); People v Coleman, 325 Mich 618, 39 NW2d 201 (1949). This right to support includes adopted children. Hendrick v Hendrick, 247 Mich 327, 225 NW 483 (1929). [2]

An illegitimate child has a right to support from his or her father and the mother may not contract away this right. Tuer v Niedoliwka, 92 Mich App 694, 699, 285 NW2d 424 (1979); see also Crego v Coleman, 463 Mich 248, 615 NW2d 218 (2000), cert denied, 531 US 1074 (2001).[2]

                               Both parents are obligated to support a minor child unless a court modifies or terminates the obligation or the child is emancipated. MCL 722.3(1). [2]

A noncustodial parent has an obligation to assist in the support of a child even if the custodial parent has sufficient income to meet the needs of the child without financial assistance. Beverly v Beverly, 112 Mich App 657, 317 NW2d 213 (1981). The remarriage of a noncustodial parent does not nullify or minimize the obligation to support. Dillon v Dillon, 318 Mich 686, 29 NW2d 126 (1947).[2]

              Under the SPTEA, support means the court-ordered payment of money for a child, including payment of the medical, dental, and other health care expenses; child care expenses; and educational expenses. MCL 552.602(ee)(i).[2]

According to 2008 MCSF 3.04, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children. For purposes of setting the support obligation, it is presumed that a specified dollar amount per child per year ($345 in 2008 manual) will be spent on ordinary expenses. Amounts may be added to compensate for other known or predictable expenses, such as orthodontia or special medical needs. This annual amount is apportioned according to the parents’ incomes, and the payer’s share is paid as part of the regular support payment. Uninsured health care expenses that the payee incurs beyond the ordinary health care expense amount are extraordinary expenses, which are apportioned between the parents based on the medical percentages set in the support order.

For enforcement purposes, a payment ordered under the Paternity Act for the necessary expenses incurred by or for the mother in connection with her pregnancy and the birth of the child is included as support. MCL 552.602(ee)(ii), 722.717(2). For enforcement purposes, support also includes the surcharge added to past-due support payments in lieu of interest. MCL 552.602(ee)(iii), .603a.[2]

All child support calculations, including for interim orders and requests for modification, must begin with application of the MCSF. MCL 552.605(2). The MCSF considers a parent’s support obligations that consist of base support adjusted for parenting time, medical support obligations that include ordinary and extraordinary medical expenses, health care coverage and division of premiums, and child care expense obligations. The amount of child support recommended by the child support formula is presumed to be appropriate. Calley v Calley, 197 Mich App 380, 496 NW2d 305 (1992). The current formula, Michigan Child Support Formula of 2008 or “2008 MCSF,” is available on the SCAO website. Please note that the 2008 Michigan Child Support Formula Manual Supplement, with the most current economic data and tables needed to calculate support, is also available on the SCAO website at http://courts.michigan.gov/scao/services/focb/mcsf.htm.

Although the formula amount is presumptively correct, stare decisis commands that the court award child support based on the child’s needs and the parent’s ability to pay. Thompson v Merritt, 192 Mich App 412, 481 NW2d 735 (1991); Kalter v Kalter, 155 Mich App 99, 399 NW2d 455 (1986). Once the court considers the formula and a request to deviate, including a child’s needs and the parent’s ability to pay, the child support determination rests in the sound discretion of the court. Thompson.

According to the Friend of the Court Act, the formula is to be based on the needs of the child and the actual resources of each parent. MCL 552.519(3)(a)(vi). Numerous factors are considered, such as parental income, family size, child care, dependent health care coverage costs, and other criteria. The formula is intended to apply in divorce cases, paternity cases, family support cases, and other cases involving the support of children. In addition, special provisions are made for low-income families, split custody, shared custody, and third-party custody situations.[2]

Source

[1]

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 09/14/2012). 

[2]

Michigan Family Law Benchbook ch 5 (ICLE 2d ed 2006), at 

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=05

 (last updated 09/14/2012). 

www.attorneybankert.com

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