In Graham v Foster, ___ Mich App __; __ NW2d __ (2015), the Court of Appeals held that a presumed father, ie, a mother's husband at the time of conception or birth of a child, is a necessary party to a Revocation of Paternity Act claim. The Court of Appeals affirmed the trial court's denial of summary disposition where an “alleged father” under MCL 722.1433(c), ie, “a man who by his actions could have fathered the child,” filed a complaint under the Revocation of Paternity Act seeking an order determining his paternity, an order of filiation, and joint custody with reasonable parenting time. Slip op at 1-2. The alleged father only named the mother as a defendant in the complaint. Slip op at 2. The mother filed a motion for summary disposition claiming that the alleged father could not satisfy the necessary factual requirements under MCL 722.1441(3)(a) and that the case should also be dismissed for failure to join a necessary party: the “presumed father.” Slip op at 2. She also argued that the statute of limitations had run, so the alleged father could no longer join the presumed father as a defendant. Slip op at 2. The alleged father argued that the presumed father was not a necessary party, and if he was a necessary party, requested the trial court allow him to amend his complaint to add the presumed father as a defendant. Slip op at 2. The trial court denied the mother's motion, concluding that genuine issues of material fact existed regarding whether the factual requirements were met and that the husband was not a necessary party to the litigation. Slip op at 2-3. The mother appealed the trial court's decision that the presumed father was not a necessary party. Slip op at 3.
The Court of Appeals held that a “'presumed father' under MCL 722.1433(e), ie, “a man . . . presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth,” is a necessary party under MCR 2.205 (necessary joinder) because the presumed father has legal rights of parenthood and “[a] successful action by [the alleged father” would strip [the presumed father] of interests that must not be set aside without [the presumed father]'s fair chance to defend those interests.” Slip op at 3-4. The Court of Appeals further held that while generally the filing of an amended complaint that adds in a defendant means that the date of the amended complaint is used to determine if the statute of limitations has run, if the additional defendant to be added is a necessary party, the necessary party can be joined even after the expiration of the limitations period. Slip op at 4. The Court of Appeals discussed that under MCR 2.118(A)(2) trial courts should allow amendment of pleadings “when justice so requires.” Slip op at 4. Thus, in Graham, the Court of Appeals held that the alleged father should be allowed to amend his complaint to add the presumed father and affirmed the denial of summary disposition. Slip op at 4. The Court of Appeals noted in a footnote that if the presumed father was not added as a defendant, the alleged father's claim “would be defective in that it would lack a necessary party.” Slip op at 4 n 3. The Court of Appeals also held that the alleged party's granted motion for genetic testing was premature in light of the fact that the presumed father had not yet been added as a party. Slip op at 4 n 3.