3.3 Paternity Under the Paternity Act
The following individuals have standing to file a paternity action under the Paternity Act:
Note: “It is unnecessary in any proceedings under [the Paternity Act] commenced by or against a minor to have a next friend or guardian ad litem appointed for the minor unless required by the circuit judge. A minor may prosecute or defend any proceedings in the same manner and with the same effect as if he or she were of legal age.” MCL 722.714(11) .
(4) The Department of Health and Human Services (DHHS) on a child’s behalf when the child is supported in whole or in part (including medical assistance) by public assistance. See MCL 722.714(1) ; MCL 722.714(12) .
“In order to have standing to seek relief under the Paternity Act, [the] plaintiff must allege that the child was born out of wedlock .” 3 Altman v Nelson , 197 Mich App 467, 475-476 (1992). For purpose of maintaining an action under the Paternity Act, 4 the child is born out of wedlock only if:
• the child’s mother was not married for the entire time from conception to the child’s birth. MCL 722.711(a) ; Spielmaker v Lee , 205 Mich App 51, 58, 61 (1994) (putative father lacked standing to bring a paternity action under Paternity Act where the mother married another man two months before the child was born).
Note: Merely alleging in a complaint that a child is born to an unmarried woman without providing any evidence to support the woman’s marital status from the time of conception to the child’s birth, is insufficient to prove that a child is born out of wedlock. See Squires v Roberts , 41 Mich App 96, 97 (1972).
• the court previously determined that the child was not an issue of that marriage before the paternity action under the Paternity Act was filed. MCL 722.711(a) ; Girard v Wagenmaker , 437 Mich 231, 235 (1991) (putative father lacked standing to bring a paternity action under the Paternity Act where the child was born while the mother was married to another man and there was no prior court determination that the mother’s husband was not the father); Dep’t of Social Services v Baayoun , 204 Mich App 170, 174-175 (1994) (the DHHS, the child, and the child’s mother lacked standing to bring a paternity action under the Paternity Act where the child was conceived while the mother was married to another man and there was no prior court determination that the child was not an issue of that marriage).
Identification of a child’s natural father under the equitable-parent doctrine precludes any later determination that the child was born out of wedlock; consequently, the child’s mother has no standing to pursue a paternity action against any other man concerning that child. Coble v Green , 271 Mich App 382, 383, 388-389 (2006) (“Because a court determination that a man is the equitable father of a child is mutually exclusive of a determination that the child was born out of wedlock, an equitable parentage order precludes the mother from having standing to assert a paternity action regarding that child.”).
An action under the Paternity Act cannot be raised if a father has already acknowledged paternity through an acknowledgment of parentage or an adjudication of paternity has already occurred in another state. 5 MCL 722.714(2) .
Where a person “does not have standing to bring an action under the Paternity Act , he [or she] is not entitled to discovery to assist in developing a paternity claim.” Sprenger v Bickle , 302 Mich App 400, 405 (2013).
A. Initiating Paternity Action
To initiate a paternity action under the Paternity Act, a complaint may be filed during a mother’s pregnancy or at any time before the child reaches the age of 18. MCL 722.714(3) . When a complaint is filed during a mother’s pregnancy and the child is not born by the time set for trial, the defending parent must agree to proceed or the case may not continue until after the child is born. MCL 722.715(2) .
The prosecuting attorney is required to initiate paternity proceedings when any of the following occur:
(1) “[T]he county [DHHS] of the county in which the mother or alleged father resides first determines that she or he has physical possession of the child and is eligible for public assistance or without means to employ an attorney[.]”
(2) The DHHS is the complainant.
(3) The child’s mother, the child, or the alleged father receives services under Title IV-D of the Social Security Act, 42 USC 651 et seq . MCL 722.714(4) .
“The prosecuting attorney and the [DHHS] may enter into an agreement to transfer the prosecutor’s responsibilities under [the Paternity Act] to 1 one of the following:
(a) The friend of the court, with the approval of the chief judge of the circuit court.
(b) An attorney employed or contracted by the county under . . . MCL 49.71 .
(c) An attorney employed by, or under contract with the [DHHS].” MCL 722.714(5) .
“A proceeding under [ MCL 722.714 ] is conducted on behalf of the state and not as the attorney for any other party.” MCL 722.714(6) .
1. Complaint Requirements
The complaint must be verified by oath or affirmation and contain all of the following information:
(1) The name of the person believed to be the child’s father.
(2) An approximate time the child was conceived.
(3) An approximate location where the child was conceived. MCL 722.714(4) ; MCL 722.714(7) .
a. DHHS Files the Complaint
When the DHHS files a complaint on the child’s behalf, the child’s mother or alleged father must be added as a plaintiff and the facts stated must be based on information and belief. MCL 722.714(7) ; MCL 722.714(12) . The complaint must be verified by the DHHS Director (or his or her designated representative) or the County DHHS Director in the county where the action is filed (or his or her designated representative). MCL 722.714(12) .
b. Falsifying Father’s Identity
A person who falsely identifies a man as a child’s father in a complaint is guilty of a misdemeanor, unless the person is an authorized representative of the DHHS who identified the man in good faith. MCL 722.722 .
c. Man Seeking To Establish Paternity of a Child Born Out of Wedlock Whose Mother Has Since Died
If a plaintiff seeking to establish his paternity of a child born out of wedlock to a mother who died approximately six years after the child was born files an action under the Paternity Act and fails to join the appropriate defendants or improperly names other defendants, the circuit court should permit the plaintiff to amend his complaint rather than dismiss the plaintiff’s claim in its entirety. 6 Black v Cook , ___ Mich App ___, ___ (2023). In Black , the trial court abused its discretion when it dismissed the plaintiff’s claim “without permitting plaintiff an opportunity to identify and seek the addition of an indisputably appropriate party defendant to permit [plaintiff’s] action to proceed.” Id . at ___.
“A complaint shall be filed in the county where the mother or child resides. If both the mother and child reside outside of this state, then the complaint shall be filed in the county where the putative father resides or is found. The fact that the child was conceived or born outside of this state is not a bar to entering a complaint against the putative father.” MCL 722.714(1) .
Note: “ MCL 722.714(1) does not expressly limit the circuit court’s subject-matter jurisdiction[; r]ather, [it] concerns venue and indicates where a paternity action should be filed.” Teran v Rittley , 313 Mich App 197, 206 (2015).
The DHHS must file its complaint in the county where the child resides. MCL 722.714(12) .
“Upon the filing of a complaint, the court shall issue a summons against the named defendant.” MCL 722.714(8) . If the DHHS files the complaint, the child’s mother or alleged father , being made a plaintiff to the proceedings, must also receive a summons notifying him or her of the paternity action hearing. MCL 722.714(12) .
The summons must contain notification that the paternity action may determine a party’s child support obligations, and custody and parenting time rights. MCL 722.714a(1) .
“The summons issued under MCL 722.714 must include a form advising the alleged father of the right to an attorney as described in [ MCR 3.217(C)(2) 7 ], and the procedure for requesting the appointment of an attorney. The form must be served with the summons and the complaint, and the proof of service must so indicate.” MCR 3.217(C)(1) .
4. Service Requirements
The complaint and summons must be “served in the same manner as is provided by court rules for the service of process in civil actions.” MCL 722.714(3) .
MCR 2.105(A) provides that “[p]rocess may be served on a resident or nonresident individual by
(1) delivering a summons and a copy of the complaint to the defendant personally; or
(2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).”
MCR 2.105(B) discusses substituted service, and provides in relevant part that “[s]ervice of process may be made
(1) on a nonresident individual, by
(a) serving a summons and a copy of the complaint in Michigan on an agent, employee, representative, sales representative, or servant of the defendant, and
(b) sending a summons and a copy of the complaint by registered mail addressed to the defendant at his or her last known address;
(2) on a minor, by serving a summons and a copy of the complaint on a person having care and control of the minor and with whom he or she resides;
(3) on a defendant for whom a guardian or conservator has been appointed and is acting, by serving a summons and a copy of the complaint on the guardian or conservator[.]”
“On a showing that service of process cannot reasonably be made as provided by [ MCR 2.105 ], the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.” MCR 2.105(J)(1) . “A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. A hearing on the motion is not required unless the court so directs.” MCR 2.105(J)(2) . “Service of process may not be made under [ MCR 2.105(J) ] before entry of the court’s order permitting it.” MCR 2.105(J)(3) .
If a party to a paternity action is incarcerated, special notice requirements apply. See Section 2.12 for a discussion on notice requirements for incarcerated parties.
5. Responsive Pleading
After the defendant is personally served with a complaint and summons, he or she must file a response to the complaint within 21 days. MCL 722.714(8) ; MCR 2.108(A)(1) . If a named defendant fails to file and serve a responsive pleading within the 21-day period, the court may enter a default judgment without taking any testimony. MCL 722.714(8) . See MCR 2.603 for the court rule governing defaults and default judgments.
If the defendant resides outside of Michigan or is served by registered mail, he or she must file a response to the complaint within 28 days. MCR 2.108(A)(2) .
B. Court’s Jurisdiction in Paternity Cases
The Family Division of the Circuit Court has sole and exclusive subject matter jurisdiction in paternity cases brought under the Paternity Act. MCL 600.1021(1)(h) . A party’s failure to plead or prove sufficient facts to support his or her standing to file a paternity action does not deprive a court of its jurisdiction. Altman v Nelson , 197 Mich App 467, 476 (1992).
“The court has continuing jurisdiction over proceedings brought under [the Paternity Act] to do any of the following:
(a) Increase or decrease the amount fixed by the order of filiation subject to [ MCL 722.717 ].
(b) Provide for, change, and enforce provisions of the order of filiation relating to the custody or support of or parenting time with the child .
(c) Determine an action to set aside the order of filiation under the [R]evocation of [P]aternity [A]ct.” 8 MCL 722.720 .
C. Advice of Right to Counsel
An indigent defendant in a paternity case has the right to appointed counsel. See MCR 3.217(C)(2) .“If the alleged father appears in court following the issuance of a summons under MCL 722.714 , the court must personally advise him that he is entitled to the assistance of an attorney, and that the court will appoint an attorney at public expense, at his request, if he is financially unable to retain an attorney of his choice.” MCR 3.217(C)(2) . “If the alleged father indicates that he wants to proceed without an attorney, the record must affirmatively show that he was given the advice required by [ MCR 3.217(C)(2) ] and that he waived the right to counsel.” 9 MCR 3.217(C)(3) .
Court-appointed counsel is not required to represent any party in disputes over custody or parenting time. MCL 722.717b .
D. Competency of Parents to Testify
“Both the mother and the alleged father of the child shall be competent to testify, and if either gives evidence he or she shall be subject to cross-examination.” MCL 722.715(1) .
The constitutional protection against self-incrimination does not entitle a putative father to refuse to give any testimony in a paternity action where the putative father cannot show the testimony sought would incriminate him. Larrabee v Sachs , 201 Mich App 107, 110 (1993).
E. Excluding the General Public
“The court may exclude the general public from the room where proceedings are held, pursuant to [the Paternity Act], admitting only persons directly interested in the case, including the officers of the court, officers or public welfare agents presenting the case, and witnesses.” MCL 722.715(1) .
F. Burden of Proof
The plaintiff in a paternity proceeding has the burden to prove paternity by a preponderance of the evidence. Huggins v Rahfeldt , 83 Mich App 740, 743 (1978); Smith v Robbins , 91 Mich App 284, 292 (1979). See also Rivera v Minnich , 483 US 574, 575-577 (1987) (finding that the preponderance of the evidence standard for paternity cases was constitutional).
G. Issuing Order of Filiation
“In an action under [the Paternity Act], the court shall enter an order of filiation declaring paternity and providing for the support of the child under 1 or more of the following circumstances:
(a) The finding of the court or the verdict determines that the man is the father.
(b) The defendant acknowledges paternity either orally to the court or by filing with the court a written acknowledgment of paternity. [ 10 ]
(c) The defendant is served with summons and a default judgment is entered against him or her.
(d) Genetic testing under [ MCL 722.716 ] determines that the man is the father.” 11 MCL 722.717(1)(a)-(c) .
If the court issues an order of filiation, it must include all of the following:
(a) The amount of child support to be paid.
(b) Payment of costs associated with the pregnancy and the child’s birth.
(c) Payment of funeral expenses if the child has died. MCL 722.717(2) . 12
Note: “If the court makes a determination of paternity and there is no dispute regarding custody, the court shall include in the order of filiation specific provisions for the custody and parenting time of the child as provided in the child custody act of 1970, . . . [ MCL] 722.21 to [ MCL] 722.29 . . . . If there is a dispute between the parties concerning custody or parenting time, the court shall immediately enter an order that establishes support and temporarily establishes custody of and parenting time with the child. Pending a hearing on or other resolution of the dispute, the court may also refer the matter to the friend of the court for a report and recommendation as provided in [ MCL 552.505 ]. In a dispute regarding custody or parenting time, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court under [ MCL 722.714 ] shall not be required to represent either party regarding that dispute.” MCL 722.717b .
“Regardless of who commences an action under [the Paternity Act], an order of filiation entered under [the Paternity Act] has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father.” MCL 722.714(14) .
Once the court signs an order of filiation, the parties must be served with a copy of the order and a proof of service must be filed with the court. MCL 722.717(6) .
“Upon entry of an order of filiation, the clerk of the court shall collect a fee of $9.00 for entering the order and the fee imposed by [ MCL 333.2891(9)(a) ], from the person against whom the order of filiation is entered. [ 13 ] The clerk shall retain the $9.00 fee and remit the fee imposed by [ MCL 333.2891(a) ], with a written report of the order of filiation, to the director of the department of community health. The report shall be on a form prescribed by or in a manner approved by the director of the department of community health. Regardless of whether the fees required by this section are collected, the clerk shall transmit and the department of community health shall receive the report of the order of filiation.” MCL 722.717(4) .
“If an order of filiation or acknowledgment of parentage is abrogated by a later judgment or order of a court, the clerk of the court that entered the order shall immediately communicate that fact to the director of the department of community health on a form prescribed by the director of the department of community health. An order of filiation supersedes an acknowledgment of parentage.” MCL 722.717(5) .
H. Authority to Enter Custody or Parenting Time Orders
Although “neither MCL 722.717 [(of the Paternity Act)] nor MCL 722.1445 [(of the ROPA)] explicitly provides a trial court with the authority to enter child custody or parenting-time orders in conjunction with the entry of an order of filiation ,” where a “plaintiff’s complaint . . . present[s] a child custody dispute, . . . upon making a determination of paternity, [a] trial court ha[s] authority under [ MCL 722.27(1) of] the Child Custody Act to enter orders regarding child custody and parenting time.” Demski v Petlick , 309 Mich App 404, 440, 443 (2015).
I. Setting Aside an Order of Filiation
Under the Revocation of Paternity Act, MCL 722.1443(2)(c) , the court may “[s]et aside an order of filiation or a paternity order.” MCL 722.1439 ] governs these actions. MCL 722.1435(3) . See Section 3.3(I) for a discussion on setting aside an order of filiation under the Revocation of Paternity Act.
“An appeal in all cases may be taken by either the complainant or the defendant, a guardian ad litem appointed by the court for the child , the mother or her personal representative, from any final order or judgment of any court having jurisdiction of filiation proceedings.” MCL 722.724 .
“No appeal, however, shall operate as a stay of execution unless the defendant gives the security provided in [ MCL 722.719 ] and further security to pay the costs of such appeal.” MCL 722.724 .
1 See Section 3.2 for a list of the different types of fathers.
2 The Paternity Act permits a child who reached the age of 18 between August 15, 1984 and June 2, 1986, to bring a paternity action. MCL 722.714(1) . However, the Court in Opland v Kiesgan , 234 Mich App 352, 367-368 (1999), found that even if the child did not fit the age classification requirement under the Paternity Act, a child born out of wedlock has a constitutional right to bring a paternity action.
3 MCL 722.711(a) , which defines the term child born out of wedlock for purposes of the Paternity Act, “does not authorize a paternity action brought by a purported father, except with regard to a child born out of wedlock; that is the case regardless of the timing of the action.” Numerick v Krull , 265 Mich App 232, 235 (2005) (despite the putative father filing a paternity action under the Paternity Act before the child’s mother married another man, the child was not born out of wedlock for purposes of MCL 722.711(a) when the mother was married before the child was born).
4 Unlike the Paternity Act, the Revocation of Paternity Act provides an alleged father with standing to maintain a paternity action if the mother is married and certain conditions are met. See Section 3.5 for more information.
5 For a discussion on an acknowledgment of parentage and revocation of the acknowledgment, see Section 3.4 . For a discussion on adjudication of paternity in another state, see Section 3.7 .
6 “[A] pleading in a paternity action could [potentially] name a minor child as a defendant under MCL 722.714(11) , and if that were done, a trial court would be authorized to appoint a named child a guardian ad litem to represent the child as envisioned by MCR 2.201(E) .” Black v Cook , ___ Mich App ___, ___ (2023).
7 For additional information on the father’s right to counsel, see Section 3.3(C) .
8 See Section 3.17 for additional information on setting aside an order of filiation under the Revocation of Paternity Act.
9 “If the alleged father does not appear in court following the issuance of a summons under MCL 722.714 , [ MCR 3.217(C)(3) ] does not apply.” MCR 3.217(C)(4) .
10 For a discussion on acknowledgment of parentage, see Section 3.4(J) .
11 If a child’s mother and alleged father fail to consent to an order of filiation within 21 days of the defendant’s receipt of the complaint and service (28 days if the defendant resides outside of Michigan or is served by registered mail), the DHHS may notify the child’s mother, the child, and the alleged father that they are required to appear for genetic testing. MCL 722.714(9) ; MCR 2.108(A)(1)-(2) . For a discussion on genetic testing, see Section 3.9 .
12 “A judgment or order entered under [the Paternity Act] providing for the support of a child or payment of expenses connected to the mother’s pregnancy or the birth of the child is enforceable as provided in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to [ MCL] 552.650 . If [the Paternity Act] contains a specific provision regarding the contents or enforcement of a support order that conflicts with a provision in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to [ MCL] 552.650 , [the Paternity Act] controls in regard to that provision.” MCL 722.717(3) .
13 For purposes of MCL 722.717 , MCR 2.002 permits a waiver of fees for indigent persons. See MCR 2.002 for additional information on fee waiver requests and a determination of indigence for purposes of filing fees. “Notwithstanding any other provision of [ MCR 2.002 ], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L) .