This week, in Rogers v Wcisel, 312 Mich App 79 (2015), slip op, the Court of Appeals addressed in a published opinion what it means under the Revocation of Paternity Act (RPA) for there to be a "mistake of fact" justifying a revocation of an acknowledgement of paternity. The Court of Appeals first provided a detailed discussion of the facts in the case wherein an acknowledged father sought to revoke his paternity after DNA evidence revealed there was a zero percent chance he was the child's father. The Court of Appeals then discussed the requirements to revoke paternity when there was a properly executed acknowledgement of parentage, specifically where the party seeking to revoke paternity alleged a mistake of fact and had unchallenged DNA evidence that the acknowledged father was not the biological father. The Court of Appeals noted that under MCL 722.1437(2) (which is now MCL 722.1437(4) as of March 17, 2015), a person with standing must support an action for revocation with an affidavit stating sufficient facts to prove one of the enumerated bases, here mistake of fact, and if the affidavit is sufficient the court must then order a blood or tissue typing or a DNA test. MCL 722.1437(3). The evidence taken together must prove by clear and convincing evidence that the acknowledged father is not the father of the child. MCL 722.1437(3). The acknowledged father in this case alleged that the uncontroverted DNA test indicating he had a zero percent chance of being the child's biological father was alone enough to establish mistake of fact.
After a detailed discussion of two cases under a predecessor statute to the RPA (the Acknowledgment of Parentage Act), Bay County Prosecutor v Nugent, 276 Mich App 183; 740 NW2d 678 (2007) and Sinicropi v Mazurek, 273 Mich App 149; 729 NW2d 256 (2006), and, Helton v Beaman, 304 Mich App 97, 105; 850 NW2d 515 (2014), a case under the same version of the RPA at issue here, the Court of Appeals refused to adopt the acknowledged father's position that the uncontroverted DNA evidence was enough to establish mistake of fact. The Court of Appeals stated, "Simply put, biology does not control either an acknowledgment of paternity or its revocation." Slip op at 8. A father who chooses to acknowledge parentage does not need to attest that he is the child's biological father, and the statutory term "acknowledged father" does not reference biological parentage. For revocation of an acknowledgement of parentage, whether the father is the biological father is a separate factor to be considered apart from the enumerated bases, here, mistake of fact.
The Supreme Court held in In re Moiles, published order of the Michigan Supreme Court, filed February 21, 2014, (Docket No. 148094), fraud and misrepresentation could not be proven by showing the parties had knowledge of the possibility that the acknowledged father was not the biological father. The trial court, here, had found that the acknowledged father doubted his biological parentage when he signed the affidavit of parentage and similar to the Supreme Court in Moiles¸ refused to find a mistake of fact where the mistake was "only partial or where doubt about that belief is suspect." However, the Court of Appeals rejected the trial court's conclusion and adopted a common law definition of mistake of fact, meaning, "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." Slip op at 9, internal quotations omitted. The Court of Appeals specifically concluded that "[t]he law . . . does not require that a party have no knowledge that a fact might be untrue to create a mistake of fact. Instead, the party must act in part upon an erroneous belief." Slip op at 9. The Court of Appeals reversed the trial court's order denying the acknowledged father's motion to revoke his acknowledgement of parentage, holding that he had sufficiently proven mistake of fact, even though the trial court found he had doubts about his biological fatherhood when he signed the acknowledgment. Therefore, under the RPA, an acknowledged father need not wholly believe he is the biological father when signing an acknowledgment of parentage in order to be able to revoke that acknowledgement.