3.15Revoke Acknowledgment of Parentage

MCL 722.1443(2)(a) permits the court to “[r]evoke an acknowledgment of parentage.” MCL 722.1437 governs these actions. MCL 722.1435(1).

“The [child’s] mother, the acknowledged father, an alleged father, or a prosecuting attorney^[1] may file an action for revocation of an acknowledgment of parentage.” MCL 722.1437(1). However, “[a]n alleged father may not bring an action under [the Revocation of Paternity Act] if the child is conceived as the result of acts for which the alleged father was convicted of criminal sexual conduct under . . . MCL 750.520b to [MCL] 750.520e.” MCL 722.1443(14).

“A proceeding under [MCL 722.1437] is conducted on behalf of the state and not as the attorney for any other party.” MCL 722.1437(3).

A.Initiating Request for Revocation

An original action filed under the Revocation of Paternity Act seeking a revocation of an acknowledgment of parentage must “be filed in the circuit court for the county in which the mother or the child resides or, if neither the mother nor the child reside in this state, in the circuit court for the county in which the child was born. If an action for the support, custody, or parenting time of the child exists at any stage of the proceedings in a circuit court of this state or if an action under . . . [MCL 712A.2(b)] is pending in a circuit court of this state, an action under this act shall be brought by motion in the existing case under [the Michigan Court Rules].”² MCL 722.1443(1).

B.Time Requirements

An action for revocation of an acknowledgment of parentage under MCL 722.1437 must “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.”³ MCL 722.1437(1).

Note: MCL 722.1437 does not apply to an action to revoke an Acknowledgment of Parentage [AOP] of a child conceived as a result of nonconsensual sexual penetration⁴ under MCL 722.1445(2). Blackman v Millward, ___ Mich App ___, ___ (2024). “Core parts of [MCL 722.1437] make it clear that this statute applies when . . . the identity of the biological father is called into question after an AOP has been executed, and the statute provides a process and mechanism for revoking an AOP under these circumstances.” Blackman, ___ Mich App at ___. “On the other hand, [MCL 722.1445(2)], enacted to implement the policy purposes of the [federal Rape Survivor Child Custody Act, 34 USC 21301, et seq.], applies only in narrow and specific circumstances: when a child is conceived as a result of ‘nonconsensual sexual penetration.’” Blackman, ___ Mich App at ___. Resultantly, “[MCL 722.1437], which contains the three-year statute of limitations . . . is inapplicable to [actions brought under MCL 722.1445(2)].” Blackman, ___ Mich App at ___. “MCL 722.1445(2) allows a mother to bring an action to revokean AOP, without reference to a timeframe.” Blackman,___ Mich App at ___.

“MCL 722.1437 provides no basis under which a parent may file an action for revocation of paternity later than three years after the child’s birth or later than one year after the signing of the acknowledgment of parentage. However, MCL 722.1443 provides an exception under which a party may request an extension of time to seek revocation of an acknowledgment of parentage[.]” Kalin v Fleming, 322 Mich App 97, 101-102 (2017).

The court may extend the time for filing an action or motion if the request for extension is “supported by an affidavit signed by the person requesting the extension stating facts that the person satisfied all the requirements for filing an action or motion under [the Revocation of Paternity Act] but did not file the action or motion within the time allowed under [the Revocation of Paternity Act] because of 1 of the following:

(a) Mistake of fact.

(b) Newly discovered evidence that by due diligence could not have been found earlier.

(c) Fraud.

(d) Misrepresentation or misconduct.

(e) Duress.” MCL 722.1443(12).

“If the court finds that an affidavit under [MCL 722.1443(12)] is sufficient, the court may allow the action or motion to be filed and take other action the court considers appropriate. The party filing the request to extend the time for filing has the burden of proving, by clear and convincing evidence, that granting relief under this act will not be against the best interests of the child considering the equities of the case.” MCL 722.1443(13).

C.Affidavit Requirement

“An action for revocation under [MCL 722.1437] shall be supported by an affidavit signed by the person filing the action that states facts that constitute 1 of the following:

(a) Mistake of fact.^[5]

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

(c) Fraud.

(d) Misrepresentation or misconduct.

(e) Duress in signing the acknowledgment.” MCL 722.1437(4).

“In an action to set aside an acknowledgment of parentage, the circuit court must make factual findings concerning the sufficiency of the plaintiff’s supporting affidavit. . . . If the plaintiff’s affidavit is sufficient, the circuit court must then determine whether to revoke the acknowledgment of parentage.” Helton v Beaman, 304 Mich App 97, 102 (2014) (opinion by O’Connell, J.) (internal citations omitted); id. at 119 (Kelly, J., concurring) (agreeing with opinion by Judge O’Connell on these steps), aff’d on other grounds 497 Mich 1001 (2015).

1.Mistake of Fact

“[A] mistake of fact [is] defined as ‘a misunderstanding, misapprehension, error, fault, or ignorance of a material fact, a belief that a certain fact exists when in truth and in fact it does not exist.’” Rogers v Wcisel, 312 Mich App 79, 95 (2015), (turning to case law for a definition of the term mistake of fact where neither the Revocation of Paternity Act nor the Acknowledgment of Parentage Act defined the term and the Legislature did not show an intent to alter the meaning of the term “as understood in our law”), quoting Montgomery Ward & Co v Williams, 330 Mich 275, 279 (1951).⁶

“The law . . . does not require that a party have no knowledge that a fact might be untrue to create a mistake of fact[; i]nstead, the party must act in part upon an erroneous belief.” Rogers, 312 Mich App at 96 (“trial court committed clear error by not finding that [the acknowledging father] had established a mistake of fact” under MCL 722.1437(4)(a),⁷ where, although the acknowledging father “had doubt about whether he was the biological father,” he signed the affidavit of parentage under the belief he was, but DNA testing later proved that he was not the biological father).

“[U]nchallenged DNA evidence alone is [in]sufficient to establish a mistake of fact under the [Revocation of Paternity Act].” Rogers, 312 Mich App at 94. Rather, “[b]iological evidence is . . . a second and separate factor to be considered in the revocation of an acknowledgment of parentage after the trial court finds the moving party’s affidavit sufficient under MCL 722.1437(2).” Rogers, 312 Mich App at 95. However, DNA evidence together with a mistaken belief that the acknowledging father is the child’s biological father at the time of signing the acknowledgment of parentage is sufficient to establish a mistake of fact. People v Nugent, 276 Mich App 183, 190 (2007) (a mistake of fact was made when an acknowledging father signed an affidavit of parentage under the belief he was the biological father, but DNA test results later proved he was not the child’s biological father⁸); Helton v Beaman, 304 Mich App 97, 105 (2014), aff’d on other grounds 497 Mich 1001 (2015) (opinion by O’Connell, J.) (the parties’ belief that the acknowledging father was the child’s biological father at the time he signed the affidavit of parentage, but was later proved otherwise through DNA testing, was sufficient to show mistake of fact under MCL 722.1437(4)(a)⁹ when the acknowledging father’s “decision to sign [the] affidavit of parentage was based in part on [his] mistaken belief that he [was] the child’s biological father”); Helton, 304 Mich App at 119 (Kelly, J., concurring) (agreeing with opinion by Judge O’Connell on sufficiency as it relates to mistake).

2.Fraud

The parties’ knowledge that the acknowledging father may not be the child’s biological father was insufficient to show fraud under MCL 722.1437(4)(c)¹⁰ because the Acknowledgment of Parentage Act does not require an acknowledging father “to attest that he is the [child’s] biological father.” In re E R Moiles (Moiles II), 495 Mich 944 (2014), rev’g in part 303 Mich App 59 (2013).

3.Misrepresentation or Misconduct

The parties’ knowledge that the acknowledging father may not be the child’s biological father was insufficient to show misrepresentation under MCL 722.1437(4)(d)¹¹ because the Acknowledgment of Parentage Act does not require an acknowledging father “to attest that he is the [child’s] biological father”. In re E R Moiles (Moiles II), 495 Mich 944 (2014), rev’g in part 303 Mich App 59 (2013).

D.Ordering Genetic Testing

“If the court in an action for revocation under [MCL 722.1437] finds that an affidavit under [MCL 722.1437(4)] is sufficient, the court shall order blood or tissue typing or DNA identification profiling as required under [MCL 722.1443(5)].” MCL 722.1437(5).

MCL 722.1443(5) requires the court to “order the parties to an action or motion under [the Revocation of Paternity 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 . . . MCL 722.716.^[12] The results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under [the Revocation of Paternity Act].” MCL 722.1443(5). See also Helton v Beaman, 304 Mich App 97, 110 (2014), aff’d on other grounds 497 Mich 1001 (2015) (“DNA results are not binding on a court making a determination under the [Revocation of Paternity Act], MCL 722.1443(5)[, and t]hat statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage”); Helton, 304 Mich App at 123 (Kelly, J., concurring) (agreeing with Judge O’Connell’s discussion related to DNA results).

E.Representation

1.No Right to Representation

“Whether an action for revocation under [MCL 722.1437] is brought by a complaint in an original action or by a motion in an existing action, the prosecuting attorney, an attorney appointed by the county, the friend of the court, or an attorney appointed by the court is not required to represent any party regarding the action for revocation.” MCL 722.1437(7).

2.Court-Appointed Representation

“If the case is a [T]itle IV-D case, the court may appoint an attorney approved by the office of child support to represent this state’s interests with respect to an action or motion under [the Revocation of Paternity]. The court may appoint a guardian ad litem to represent the child’s interests with respect to the action or motion.” MCL 722.1443(6).

F.Burden of Proof

“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.” MCL 722.1437(5).

G.Costs and Fees

“Except for an action filed under [MCL 722.1445(2) (revocation of paternity action filed for a child conceived as a result of nonconsensual sexual penetration)], a court, in its discretion, may order a person who files an action or motion under [the Revocation of Paternity Act] to post an amount of money with the court, obtain a surety, or provide other assurances that in the court’s determination will secure the costs of the action and attorney fees if the person does not prevail. The court, in its discretion, may order a nonprevailing party, including a mother who is a nonprevailing party under [MCL 722.1445(2)], to pay the reasonable attorney fees and costs of a prevailing party.” MCL 722.1443(11).

H.Court Determination

Because “an order revoking an acknowledgment of parentage [AOP] constitutes an order ‘setting aside a paternity determination’ . . ., [it] is subject to a best interest analysis under MCL 722.1443(4).” Helton v Beaman, 497 Mich 1001, 1001 (2015) (affirming “the result reached” in 304 Mich App 97 (2014) “[f]or the reasons explained in section II of the concurring opinion,” 304 Mich App at 116-124 (K. F. Kelly, J., concurring)).

Note: The best-interest findings required to refuse to enter an order affecting paternity under MCL 722.1443(4) does not apply to actions brought under MCL 722.1445(2). Blackman v Millward, ___ Mich App ___, ___ (2024). “[MCL 722.1445(2)-(4)] were adopted to implement the policy mandates in the [Rape Survivor Child Custody Act, 34 USC 21301, et seq.], which include a policy determination that ‘men who father children through rape should be prohibited from visiting or having custody of those children.’” Blackman, ___ Mich App at ___, quoting 34 USC 21302(1). “The directive [in MCL 722.1445(2)(a)] to revoke the AOP is mandatory—the court shall revoke the AOP.” Blackman, ___ Mich App at ___. “This language does not leave any room for a trial court to exercise its discretion otherwise.” Id. at ___.

1.Refusing to Revoke Acknowledgment

“A court may refuse to enter an order . . . revoking an acknowledgment of parentage . . . if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4). MCL 722.1443(4) sets out factors the court may consider, including in relevant part, “[t]he age of the child”; “[t]he harm that may result to the child”; “[o]ther factors that may affect the equities arising from the disruption of the father-child relationship”; and “[a]ny other factor that the court determines appropriate to consider.”

“The court shall state its reasons for refusing to enter an order [revoking an acknowledgment of parentage] on the record.” MCL 722.1443(4). See Jones v Jones, 320 Mich App 248, 256-257 (2017) (where “the trial court ultimately did alter the presumed father’s status, the court . . . was not required to express its particular reasons”; explicit findings with respect to specific best-interest factors under MCL 722.1443(4) are required “to be made on the record [only] when [the court] refuses to enter the order, i.e., when it does not alter the presumed father’s status”).

2.Issuing Order of Revocation

If the court enters an order revoking the acknowledgment of parentage, the court clerk must send a copy of the order of revocation to the state registrar. MCL 722.1437(6). “The state registrar shall vacate the acknowledgment of parentage and may amend the birth certificate as prescribed by the order of revocation.” Id.

“A judgment entered under [the Revocation of Paternity 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 prevent a person from seeking relief under applicable court rules to vacate or set aside a judgment.” MCL 722.1443(3). “MCL 722.1443(3) allows a person who has obtained a judgment under the [Revocation of Paternity Act] to seek relief from prior child support orders under MCR 2.612.” Adler v Dormio, 309 Mich App 702, 709 (2015) (noting that “MCL 722.1443(3) specifically allows a defendant to resort to applicable court rules to seek relief from prior support orders[, and that] MCR 2.612(C)(1) expressly provides for such relief and does not limit the type of orders from which relief may be sought”).

I.Child Conceived After Nonconsensual Sexual Penetration

The court must “[r]evoke an acknowledgment of parentage [AOP] for an acknowledged father,” if a mother brings an action under the Revocation of Paternity Act, and “after a fact-finding hearing, proves by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration[.]” MCL 722.1445(2)(a). “The clear and unambiguous language of the statute mandates that the trial court hold a fact-finding hearing and determine, by clear and convincing evidence, whether the child was conceived as a result of nonconsensual sexual penetration.” Blackman v Millward, ___ Mich App ___, ___ (2024). In Blackman, the trial court clearly erred when it “dispensed with the hearing, and instead relied on defendant’s multiple CSC-III convictions for the factual basis for its decision [to revoke the AOP],” when “these convictions, premised on the fact that defendant was plaintiff’s teacher at the time of the offenses, [did] not conclusively establish that the child was conceived as a result of nonconsensual sexual penetration.” Id. at ___. A criminal conviction is not necessary to getting an AOP revoked under MCL 722.1445(2). Blackman, ___ Mich App at ___. According to the Court, “facts establishing CSC-III, though uncharged, could establish that the child was conceived as a result of nonconsensual sexual penetration.” Id. at ___. However, the trial court clearly erred when it took judicial notice of the facts because defendant disputed the facts and had a due process right to respond to them. Id. at ___.¹³

MCL 722.1445(2) “does not apply if, after the date of the alleged nonconsensual sexual penetration described in [MCL 722.1445(2)], the biological parents cohabit and establish a mutual custodial environment for the child.” MCL 722.1445(3).

The court may not require a person filing an action under MCL 722.1445(2) to post money or surety with the court for the costs of the action and attorney fees if the person does not prevail. MCL 722.1443(11). However, the court “in its discretion, may order a nonprevailing party, including a mother who is a nonprevailing party under [MCL 722.1445(2)], to pay the reasonable attorney fees and costs of a prevailing party.” MCL 722.1443(11); see also Blackman, ___ Mich App at ___ & n 4.Standard of Review

The Court of Appeals “reviews a trial court’s factual findings in proceedings under the [Revocation of Paternity Act] for clear error. ‘The trial court has committed clear error when [the] Court [of Appeals] is definitely and firmly convinced that it made a mistake.’” Jones v Jones, 320 Mich App 248, 253 (2017), quoting Demski v Petlick, 309 Mich App 404, 431 (2015) (quotation marks and citation omitted in original).

The Court of Appeals “reviews de novo the interpretation and application of statutory provisions.” Jones, 320 Mich App at 253, citing Parks v Parks, 304 Mich App 232, 237 (2014).

See also In re E R Moiles (Moiles I), 303 Mich App 59, 66 (2013), rev’d in part and vacated in part on other grounds by In re E R Moiles (Moiles II), 495 Mich 944 (2014)¹⁴ (“[a] trial court’s findings concerning the sufficiency of an affidavit and whether there is clear and convincing evidence that a man is not a child’s father under [MCL 722.1437(5)¹⁵]” is reviewed for clear error, whereas conclusions of law are reviewed de novo).