Court of Appeals Immediately Restores Acknowledged Father’s Parental Rights
Opinion Published 01/18/2024 (Garrett, P.J., and Letica and Maldonado, JJ.)
Court of Appeals Docket No. 366736
Per Curiam.
Lisa Schmidt of the Speaker Law Firm represented the Defendant
Holding: In a case for Revocation of Paternity against an acknowledged father the complaint must be supported by a timely-filed affidavit asserting one of the statutory grounds. Because the affidavits here were deficient in showing a mistaken belief of fact by the plaintiff and failing to address the due diligence requirement in uncovering the newly discovered evidence, the Trial Court erred in failing to dismiss the case.
Facts: Plaintiff, an alleged father, filed a Revocation of Paternity action against an acknowledged father in September 2022, less than 2 months before the child’s 3rd birthday and expiration of the statute of limitations. While the mother was engaged to Defendant, she had maintained a sexual relationship with Plaintiff from 2017 until she died due to substance abuse in November 2020. Defendant had been the child’s primary custodian since the child’s birth.
The mother had informed Plaintiff of her pregnancy two months after conception. In response Plaintiff paid her $400 to get an abortion. He did not attend the birth, though at the time he believed there was a 50/50 chance he was the father of the child. Plaintiff continued to see the mother sexually and she occasionally brought the child to these liaisons. After 3-4 months, Plaintiff believed there was a 70% chance he was the father.
Shortly before her death the mother asked Plaintiff to take a DNA test, but he never “got around to that.” Instead, he contacted the child’s maternal grandmother in February 2021 after learning the mother died to request a DNA test to “exclude” himself from “the situation.” When the maternal grandmother directed him to Defendant, Defendant declined to make the child available for testing, suggesting he already had a DNA test.
Throughout his sexual relationship with the mother, Plaintiff had another relationship with a woman with whom he had two children. In June 2022, Plaintiff’s fiancé discovered photos of the child showing a biological resemblance to Plaintiff. The next day Plaintiff retained an attorney, but no complaint was filed for almost three months.
Plaintiff filed a complaint paired with an affidavit addressing jurisdiction and venue under the Child Custody Act. Defendant filed an answer and a motion to dismiss for a lack of an affidavit as required by statute. A supplemental affidavit was filed on November 30, 2022, backdated to September 9, 2022, along with Plaintiff’s response to the dismissal motion. This affidavit asserted that both parties were in a relationship with the mother at the time the child was conceived, and Defendant was unaware of Plaintiff’s romantic relationship at the time the Affidavit of Paternity was signed. It also asserted Plaintiff had “recently” discovered photographic evidence of a strong family resemblance.
The Trial Court rescheduled and then cancelled the hearing on Defendant’s motion to dismiss. After the parties stipulated to DNA evidence, the Trial Court held a hearing limited to the ROPA best interest factors. The Trial Court repeatedly prevented Defendant from presenting evidence about Plaintiff’s past behavior, including the fact that Plaintiff gave the mother money whenever they met for sex. At the close of the hearing, the Trial Court called the case a “horrible situation” that “should have been rectified at birth” and stated there was a “mistake of fact and newly discovered evidence.” The Trial Court faulted Defendant for “deceiving” Plaintiff into believing he had taken a DNA test for the child, calling the Plaintiff’s liberty interest to raise a biological son the “overwhelming factor.” The Trial Court found it was in the child’s best interest to know his biological family and ordered the child to be turned over to Plaintiff. Defendant appealed the Trial Court’s Order revoking his parental rights and awarding Plaintiff custody.
Key Appellate Rulings: When a complaint for revocation of an acknowledgment of paternity is filed it must be supported by an affidavit that states facts to support one of several legal bases for setting aside the appeal. MCL 722.1437. When an affidavit fails to meet the requirements of MCL 722.1437(4), the court errs by going forward with a best interest factor analysis under MCL 722.1443(4). In re Moiles, 495 Mich 944; 843 NW2d 220 (2014).
The Court of Appeals held that Plaintiff was required to submit an affidavit that contained facts demonstrating a mistake of fact and newly discovered evidence under MCL 722.1437(4)(a), (b), but had failed to do so. The Court noted that the supplemental affidavit filed in November 2022 was untimely and beyond the 3-year statute of limitations, relying on Kalin v Fleming, 322 Mich App 97, 101-102; 910 NW2d 707 (2017). However, assuming without deciding that the November 2022 affidavit related back to the original complaint, the Court of Appeals determined the affidavit did not satisfy the statute.
Mistake of Fact Requires a Mistaken Belief by the Plaintiff
Regarding a mistake of fact, the Court of Appeals relied on Rogers v Wcisel, 312 Mich App 79, 96; 877 NW2d 169 (2015), to hold Plaintiff to the burden of establishing facts showing “a belief that a certain fact exists when in truth and in fact it does not exist.” The affidavit contained “no information regarding a mistake of fact by Plaintiff” so Plaintiff failed to demonstrate a mistake of fact.
Newly Discovered Evidence Includes Due Diligence Requirement
As to the newly discovered evidence, the Court of Appeals stated, “Because plaintiff failed to address the due diligence requirement, this supplemental affidavit also failed.” The Court of Appeals held that because the affidavit was insufficient, the Trial Court legally erred by failing to dismiss the complaint.
The Devil’s in the Footnotes
The most interesting legal aspects in this case are in the footnotes. There the Court of Appeals held that stipulating to submit to DNA testing did not resolve Defendant’s challenge to the sufficiency of the affidavit or waive his ability to pursue that defense. It also stated that the Trial Court erred in examining the child’s best interests where the affidavit was insufficient. “For purposes of completeness” the Court of Appeals found error in the Trial Court’s conclusion faulting Defendant for his “deception” around the DNA test because “Plaintiff had a much earlier opportunity than defendant to address his paternity, but chose not to do so because of his relationship with [his fiancé.]” The Court of Appeals also stated “the trial court clearly erred in granting ‘overwhelming’ weight to the biological relationship between plaintiff and [the minor child]” citing Lehr v Robertson, 463 US 248, 260-261; 103 S Ct 2985 (1983).
Ultimately, the Court of Appeals vacated the Trial Court’s order revoking Defendant’s acknowledgment of parentage and placement of the child with Plaintiff. It granted the order immediate effect and instructed that the child was to be immediately returned to Defendant’s care and that the case dismissed with prejudice.
