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
(last updated 09/14/2012).
[2]
Michigan Family Law Benchbook ch 5 (ICLE 2d ed 2006), at
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