phone icon email icon
(517) 482-8933

Speaker Law
Blog

Presumed Father Can Challenge Paternity For The First Time In Divorce Proceedings

Posted on Wednesday, April 11, 2018

The three-year time limit for filing a paternity challenge under the Revocation of Paternity Act (RPA) does not apply when the presumed father raises the issue in a divorce action, the Michigan Court of Appeals has ruled.

In Taylor v Taylor (Docket No. 336193), a published decision, the Court of Appeals was asked to determine whether a paternity challenge always has to be brought within three years of the child’s birth pursuant to MCL 722.1441(2). That part of the RPA says:

“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 parties in Taylor were married in 2000 and the youngest child was born in 2011 while the parties were separated. Both parties agreed, and DNA testing established, that the defendant is not the biological father of the youngest child. The plaintiff filed for divorce in 2016, when the youngest child was 5 years old. Thereafter, the defendant filed a motion for a paternity determination. The trial court denied the motion, finding it lacked jurisdiction because the defendant did not raise the paternity issue within three years of the child’s birth. In so ruling, the trial court interpreted §1441(2) as requiring a paternity issue be raised within three years of the child’s birth.

The defendant appealed, arguing the three-year limit did not apply if the paternity issue was raised in a divorce action. The Court of Appeals agreed.

In its analysis, the Court of Appeals noted that §1441(2) uses the disjunctive word “or” and that two alternatives for challenging paternity are provided:

  • when “an action is filed by the presumed father within 3 years after the child’s birth.”
  • when “the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother.”

The three-year limit only applies to the first option, and Taylor involves the second option, the Court of Appeals explained. Looking at the language of §1441(2), the appeals court said there was no “clear indication” the Legislature intended to use the word “and” rather than “or.”

According to the Court of Appeals, to rule otherwise would create the additional restriction that there must be a divorce or separate maintenance action in order to raise the issue. “[T]here is nothing in the statute which would suggest that this is what the Legislature intended,” the appeals court observed.

Thus, “we are left with only one rather unremarkable conclusion: the Legislature intended exactly what it said,” the Court of Appeals wrote. “The presumed father may raise the issue in a paternity action filed within three years of the child’s birth OR in a divorce action (without regard to how old the child is).”

Do you have an appeal?
Let's find out!

Recent
Posts

Mediator’s Failure To Inquire About Domestic Violence Did Not Negate Divorce Settlement
Feb 19, 2020
A settlement agreement signed by the parties in this divorce action...
Fees In Divorce Case Properly Denied: Not Pursued Within “Reasonable Time”
Feb 12, 2020
The plaintiff and the defendant divorced in 2013. Pursuant to a con...
Trial Court Correctly Granted Minor’s Petition To Change His Name
Feb 5, 2020
A 14-year-old’s petition to change his surname was properly granted...
MSC: Trial Court Must Consider Guardianship For Children Under Age 10
Jan 29, 2020
A trial court must examine whether terminating a mother’s parental ...

Tags

 

Subscribe to our blog

* indicates required