30 June 2017

The Michigan Court of Appeals just issued an opinion of first impression under the Revocation of Paternity Act [RPA]. MCL 722.1431 et.seq. The RPA was enacted in 2012 to determine the paternity of children in certain situations.  It is presumed that a husband is the father of any children conceived or born by his wife during the marriage. However, the husband may or may not be the biological father.  The case of interest is Jeremy Jones v Sharon Jones issued June 22, 2017.  In that case, the parties were married in 1998.  The parties lived in separate residences across the state beginning in 2008.  The wife was using assisted reproductive technology (ART), in particular Invitro Fertilization [IVF).  In January, 2010, the husband revoked his consent to the IVF procedures. After this, the first fertility center refused to give the wife treatment.  The second fertility center would only treat the wife on the condition that the parties sign a financial waiver treating the wife as a single person. On November 18, 2013, a child was born to the wife using a donor’s genetic material. The husband filed for a divorce in 2015 claiming that the child was born out of wedlock and that the husband was not the child’s legal father.  The husband and wife stipulated to an agreement that the child was not of the marriage.

The RPA provides that a presumed father who files for divorce may be declared to not be a child’s father as follows:

 If a child has a presumed father, a court may determine that the child is born out

Of wedlock for the purpose of establishing the child’s paternity if an action is filed

by the presumed father within 3 years after the child’s birth or if the presumed

father raises the issue in an action for divorce or separate maintenance between

the presumed father and the mother.

 

The   Court of Appeals defined “out of wedlock” as “born or conceived during a marriage but not the issue of that marriage” from the Paternity Act, MCL 722.711 et. Seq.

 

If a trial court determines that a child was born out of wedlock, the court nonetheless may refuse to enter such an order if it would not be in the child’s best interest to do so. MCL 722.1443(4) provides that:

  1. Court may refuse to enter an order…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. The court shall state its reasons for refusing to enter an order on the record. The court may consider the following factors:
  1. Whether the presumed father is estopped from denying parentage because of his conduct.
  2. The length of time the presumed father was on notice that he might not be the child’s father.
  3. The facts surrounding the presumed father’s discovery that he might not be the child’s father.
  4. The nature of the relationship between the child and the presumed alleged father.
  5. The age of the child
  6. The harm that may result to the child.
  7. Other factors that may affect the equities arising from the disruption of the father-child relationship.
  8. Any other factor that the court determines appropriate to consider.

 

The Court must in all cases review these factors to determine whether revocation of paternity should be granted.

 

In this case, the husband and wife were living in different parts of the state. The husband expressly revoked his consent to the IVF process. The husband was unaware that his wife was actually trying to get pregnant.  The husband thought his wife’s eggs were being harvested only. There was no bond between the husband and the child. Nor was there any evidence that the husband had any intention of bonding with the child in the future.  The husband and the wife expressly agreed that the child was not the husband’s in a settlement.

Tags: