LaBre: Revoking Paternity: New ExceptionsPublished 2:06pm Thursday, November 29, 2012
LaBre on Law
By Robert W. LaBre, J.D.
Special to Leader Publications
Last night, I did some research on Michigan paternity law, and I found a new set of statutes that provide a basis for revoking paternity judgments where the man was determined the father by default: I had to tell my dad.
I entered the law office and said my usual “good mornings” and “what’s new” to Mom and Terrie, who were both in the front reception area.
Then I walked down the hall to my father’s office, where I found Dad reading at his computer.
From his posture, he didn’t seem as though he was in analytic mode so that an interruption would be intrusive.
Tapping on the doorframe leading into his office, I said in a cheery voice, “Salve, mon pere.”
“Salve” means “hello” in Latin, and “mon pere” means “father” in French.
Almost spinning in his chair to face me, he boomed, “Salve felius!” “Felius” means “son” in Latin. It’s a LaBre thing, we like it and do it because no one understands.
“Gotta sec?” I asked.
“Sure,” he replied, and extended his hand toward a chair next to where he was sitting.
“I found something interesting last night during some research on a paternity law,” I said as I walked into his office while shrugging off my coat at the same time. “I thought you might want to know about it.”
“Tell me,” he said smiling as he leaned back in his chair.
I tossed my coat over the backrest of one of the other chairs in his office and placed my briefcase in its seat, and then sat down next to him.
“Do you recall Michigan’s default rule in paternity cases?” I asked.
“Sure,” Dad replied. “A guy served with a complaint for paternity needs to answer within 21 days of service, otherwise the court can determine him be the father automatically.”
“Well, last June, the legislature made effective a statute allowing guys to revoke the paternity judgment if paternity was established by default; all he has to do is file a motion to set it aside,” I said.
“Oh?” he said inquisitively. From his facial expressions, I could see his mental wheels spinning. “That piques my interest. What are the conditions?”
“Generally, after June 12, 2013, the child must be no more than 3 years old or, if the child was older than 3 at the time the default judgment was entered, the motion to set aside must be brought within one year after the judgment was signed by the judge.”
“What about guys who were defaulted years ago?” Dad asked. “Did you see anything in there for that?”
“Sure did,” I replied. “Any man who has ever been established as the father of a child by default in Michigan can file a motion to set it aside so long as the action is filed by no later than June 12, 2013.”
“So the legislature made it a sunset provision that ends a year after the act’s effective date,” Dad said.
“There’s more,” I went on. “Assuming the guy missed the time windows for filing, a motion to set aside can still be brought if excusable neglect can be shown, such as: fraud, duress, mistake or misconduct, among other things.”
“That’s good,” Dad said. “Who decides the case and what’s the standard of proof, clear and convincing evidence or preponderance of evidence?”
“The judge decides the case,” I said.
“I think the standard of proof is debatable,” I went on. “Clear and convincing evidence pops up a couple of times in the act, but the act itself doesn’t make plain whether it applies only to the specific sections that it’s found in, or to the act as a whole.”
“Is genetic testing required or optional?” Dad asked.
“Required,” I replied. “Albeit, the results aren’t binding on the court in making its final determination. Even if the genetic tests show that the guy isn’t the father of the child, the judge can still refuse to set aside the original judgment of paternity.”
A smirk crossed Dad’s face as he said, “I’ll bet that’s because the last part of the analysis focuses on the best interests of the child rather than the evidence showing that the man isn’t the father.”
Child’s best interests count
“That’s exactly right,” I said. “In fact, the judge need only ‘find evidence’ that setting aside the original paternity judgment is against the child’s best interests in order to deny the motion.”
“Sounds like the best interests factors are determined by using a preponderance of evidence standard of proof, doesn’t it,” Dad said.
“I thought so, too,” I said. “And one more thing, if the guy loses the case, for whatever reason, he has to pay the other party’s attorney fees.”
A sour look crossed my dad’s face, but he said nothing.
There was a pause in the conversation before I said, “Well, I suppose that’s pretty much all I came to bother you with.”
“You’re never a bother, son,” Dad said.
Then, sensing that our conversation was over, Dad swiveled back toward his computer, and said, “Well, that should make for some interesting cases.”