6.6Revocation of Paternity Act
The Revocation of Paternity Act was enacted “to provide procedures to determine the paternity of children in certain circumstances [and] to allow acknowledgments, determinations, and judgments relating to paternity to be set aside in certain circumstances[.]” 2012 PA 159, title.
If paternity has been established or is uncontested and the father has a substantial parent-child relationship with his child, he has a protected liberty interest in that relationship that entitles him to due process of law. Lehr v Robertson, 463 US 248, 261-262 (1983); Caban v Mohammed, 441 US 380, 392-393 (1979); Stanley v Illinois, 405 US 645, 649 (1972).
Different sections of the Revocation of Paternity Act govern the procedures for revoking paternity that had been established under certain circumstances:
•MCL 722.1437 applies to actions to set aside an acknowledgment of parentage. MCL 722.1435(1).
•MCL 722.1438 applies to actions to determine that a child’s genetic father is not the child’s father. MCL 722.1435(2).
•MCL 722.1439 applies to actions to set aside an order of filiation. MCL 722.1435(3).
•MCL 722.1441 applies to actions to determine that a child’s presumed father is not the child’s father. MCL 722.1435(4).
•MCL 722.1445(2) applies to actions to revoke an acknowledgment of parentage, determine that a genetic father is not the child’s father, or set aside an order of filiation in cases involving a child conceived as a result of nonconsensual sexual penetration.1
In an action filed under the Revocation of Paternity Act, a court may do any of the following:
•revoke an acknowledgment of parentage. MCL 722.1443(2)(a), MCL 722.1445(2)(a).
•determine that a child’s genetic father is not the child’s father. MCL 722.1443(2)(b), MCL 722.1445(2)(b).
•set aside an order of filiation or other paternity order. MCL 722.1443(2)(c), MCL 722.1445(2)(c).
•determine that a child was born out of wedlock. MCL 722.1443(2)(d).
•determine paternity and enter an order of filiation under MCL 722.717 of the Paternity Act. MCL 722.1443(2)(e).
•determine paternity regarding an alleged father and enter an order of revocation of paternity for that alleged father. MCL 722.1445(2)(d).
A court may refuse to interfere with an existing determination of paternity if there is evidence that revoking paternity would not be in the child’s best interests. MCL 722.1443(4).2 Specifically, if there is evidence that revoking paternity is not in a child’s best interests, “a court may refuse to enter an order setting aside a paternity determination, revoking an acknowledgment of parentage, determining that a genetic father is not a child’s father, or determining that a child is born out of wedlock . . . .” Id.
If the court refuses to revoke paternity, it must state on the record its reasons for the refusal. Id. “MCL 722.1443(4) is quite clear on this point—it only requires such findings and reasons to be made on the record when it refuses to enter the order, i.e., when it does not alter the presumed father’s status. Therefore, because the trial court ultimately did alter the presumed father’s status, the court clearly was not required to express its particular reasons.” Jones v Jones, 320 Mich App 248, 256-257 (2017).
To determine whether to enter an order revoking paternity, the court may consider these factors:
“(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.” MCL 722.1443(4).3
MCL 722.1443(5) requires the court to “order the parties to an action or motion under [the Revocation of Paternity Act, MCL 722.1431 et seq.,] to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under [the Revocation of Paternity Act].” The genetic testing must be conducted as described in MCL 722.716 of the Paternity Act. MCL 722.1443(5).
However, “[t]he 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)4 (opinion by O’Connell, J.), aff’d on other grounds 497 Mich 1001 (2015). According to the lead opinion, and agreed with by the concurring opinion, “DNA results are not binding on a court making a determination under [the Revocation of Paternity Act, and that] statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage.” Helton, 304 Mich App at 110 (O’Connell, J.); Helton, 304 Mich App at 123 (K. F. Kelly, J., concurring). In affirming the outcome in Helton, the Michigan Supreme Court held that “an order revoking an acknowledgment of parentage constitutes an order ‘setting aside a paternity determination’ and, therefore, is subject to a best interest analysis under MCL 722.1443(4).” Helton, 497 Mich 1001.
E.Best-Interest Factors Under the Child Custody Act5
The best-interest factors in the Revocation of Paternity Act apply to a court’s determination that a child was born out of wedlock even though the child’s mother was married at the time of the child’s birth. Demski v Petlick, 309 Mich App 404, 432 (2015). Consideration of the best-interest factors in the Child Custody Act is also proper:
“The breadth of the factors available to a court to consider is exemplified by the fact that Factor (h) is ‘[a]ny other factor that the court determines appropriate to consider.’ MCL 722.1443(4)(h). Given the discretion afforded to a trial court under MCL 722.1443(4) generally, and under MCL 722.1443(4)(h) specifically, the court is free to consider the best-interest factors set forth in the Child Custody Act, MCL 722.23, in its assessment under MCL 722.1443(4).” Demski, 309 Mich App at 432 n 10.
F.What the Revocation of Paternity Act Does Not Do
“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). See Adler v Dormio, 309 Mich App 702, 709 (2015) (“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. MCL 722.1443(3) specifically allows a defendant to resort to applicable court rules to seek relief from prior support orders. MCR 2.612(C)(1) expressly provides for such relief and does not limit the type of orders from which relief may be sought.”).
G.When an Action Under the Revocation of Paternity Act May Not Be Brought
An action under the Revocation of Paternity Act may not be initiated when the child is subject to a court’s jurisdiction under the Juvenile Code, MCL 712A.1 et seq., and a petition seeking the termination of parental rights to the child has been filed. MCL 722.1443(15). However, an action under the Revocation of Paternity Act may be brought under these circumstances if the court with jurisdiction over the child under the Juvenile Code “first finds that allowing an action under [the Revocation of Paternity Act] would be in the best interests of the child.” Id.
“An alleged father may not bring an action under [the Revocation of Paternity Act] if the child [was] 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).
H.When Paternity Must Be Revoked Under the Revocation of Paternity Act
“If an action is brought by a mother who, after a fact-finding hearing, proves by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration,[6] the court shall do 1 of the following:
(a) Revoke an acknowledgment of parentage for an acknowledged father.
(b) Determine that a genetic father is not the child’s father.
(c) Set aside an order of filiation for an affiliated father.
(d) Make a determination of paternity regarding an alleged father and enter an order of revocation of paternity for that alleged father.” MCL 722.1445(2).
“2016 PA 178 revised the ROPA by adding subsections [(2)-(4)] to MCL 722.1445 in order to meet the requirement under the federal [Rape Survivor Child Custody Act, 34 USC 21301, et seq.] to ensure ‘termination of parental rights’ of the assailant, as defined at 34 USC 21301(2).” Blackman v Millward, ___ Mich App ___, ___ (2024). “[T]he 2016 amendments granted a mother the authority to initiate an action to protect herself and the child by terminating her offender’s parental rights.” Id. at ___.
If a mother proves by clear and convincing evidence at a fact-finding hearing that a child was conceived through nonconsensual sexual penetration, then “[t]he directive to revoke the AOP [Acknowledgment of Parentage] is mandatory—the court shall revoke the AOP.” Id. at ___. “This language does not leave any room for a trial court to exercise its discretion otherwise.” Id. at ___.
“MCL 722.1445(3) provides the only exception to the mandate that the court revoke the AOP [in an action brought under MCL 722.1445]: ‘[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.’” Blackman, ___ Mich App at ___, quoting MCL 722.1445(3). The bases for refusing to set aside a paternity determination, revoking an AOP, determining that a genetic father is not a child’s father, or determining that a child is born out of wedlock listed under MCL 722.1443(4) (best interest determination factors) do not apply to actions brought under MCL 722.1445(2). Blackman, ___ Mich App at ___.7
1 For purposes of MCL 722.1445, “sexual penetration” means “that term as defined in [MCL 750.520a].” MCL 722.1445(4). MCL 750.520a(r) defines sexual penetration as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.”
2 The best-interest findings set forth in MCL 722.1443(4) do not apply to actions brought under MCL 722.1445(2). Blackman v Millward, ___ Mich App ___, ___ (2024). (“[T]he trial court did not err by not conducting a best interests analysis under [MCL 722.1443(4)] because that statute does not apply to actions to revoke an AOP [Acknowledgment of Parentage] initiated under [MCL 722.1445].”). For more information on actions to revoke an AOP under MCL 722.1445(2), see the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Sections 3.5 and 3.15. See also Section 6.6(H).
3 MCL 722.1443(4) does not apply to actions brought under MCL 722.1445(2). See Blackman v Millward, ___ Mich App ___, ___ (2024): “[MCL 722.1445(2)] was enacted to implement the [Rape Survivor Child Custody Act, 34 USC 21301, et seq.]” in which a key provision “was to provide a mechanism to sever the parental rights of a rapist who fathers a child.” “[I]f a mother, after a fact-finding hearing, proves by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration, the court shall revoke an Acknowledgment of Parentage [AOP] for an acknowledged father.” Blackman, ___ Mich App at ___ (cleaned up); see MCL 722.1445(2). The only exception to the mandate that the court revoke the AOP is when “the biological parents cohabit and establish a mutual custodial environment for the child” after the date that the nonconsensual sexual penetration allegedly occurred. MCL 722.1445(3). “[MCL 722.1445(3)] makes no mention of considering the best interests of the child.” Blackman, ___ Mich App at ___. For more information on actions to revoke an AOP under MCL 722.1445(2), see the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Sections 3.5 and 3.15. See also Section 6.6(H).
4 Helton v Beaman, 304 Mich App 97 (2014), is a plurality opinion. “‘[A] plurality decision in which no majority of the participating justices agree concerning the reasoning is not binding authority under the doctrine of stare decisis[.]’” Demski v Petlick, 309 Mich App 404, 429 (2015), quoting Burns v Olde Discount Corp, 212 Mich App 576, 582 (1995).
5 The best-interest findings required to refuse to enter an order affecting paternity under MCL 722.1443(4) do not apply to actions brought under MCL 722.1445(2). See Blackman v Millward, ___ Mich App ___, ___ (2024) (“[T]he trial court did not err by not conducting a best interests analysis under [MCL 722.1443(4)], because that statute does not apply to actions to revoke an AOP [Acknowledgment of Parentage] initiated under [MCL 722.1445].”). For more information on actions to revoke an AOP under MCL 722.1445(2), see the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Sections 3.5 and 3.15. See also Section 6.6(H).
6 For purposes of MCL 722.1445, “sexual penetration” means “that term as defined by [MCL 750.520a].” MCL 722.1445(4). MCL 750.520a(r) defines sexual penetration as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.”
7 For more information on actions to revoke an Acknowledgment of Parentage under MCL 722.1445(2), see the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Sections 3.5 and 3.15.