Michigan recently enacted legislation that allows a biological Father to ask the court to participate in his child’s life, even if the Mother was married to someone else when the child was born or conceived or another man signed the Affidavit of Parentage. MCL 722.1437 The law is certainly a step in the right direction. Most people agree that a biological parent should have rights to their children. However, the legislation is vague and leaves many unanswered questions, particularly for legal Fathers who are not biological Fathers, but who have been acting as the child’s Father for years.
The statute allows a biological parent, mother or father, to ask the court to set aside an Affidavit of Parentage if there is an a) mistake of fact, b) newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed, c) fraud, d) misrepresentation or misconduct, or e) duress in signing the acknowledgment. However, the statute fails to define these terms. See MCL 722.1433. It begs the question as to whether, for example, a Mother can seek to revoke the affidavit of parentage on the basis of fraud if a Father who has been acting as a father for years has now embezzled money, or committed another crime? As to duress, the statute specifically relates the duress to duress in signing the document. Because the statute simply says “fraud” or “misconduct,” arguably an individual who has committed a crime or other type of action that could qualify as misconduct could put them in a position to have their parental rights challenged. It is unlikely a crime of embezzlement would result in Child Protective Services seeking to terminate parental rights under the laws that pertain to abuse and neglect, especially if the other parent is appropriate. A mother can use this statute as a means to terminate parental rights of a legal, but not biological, Father.
The statute attempted to build in a safeguard, by indicating the court may refuse to set aside the Affidavit of Parentage if they find evidence that the revocation is not in the child’s best interest. MCL 722.1443(4) However, the statute makes the refusal absolutely discretionary to the judge and fails to provide an evidentiary standard by which the best interest factors should be weighed. If a criminal is convicted, the evidence has to be established beyond a reasonable doubt. If custody is to be awarded to one party or the other, the court has to decide what is in the best interest of the child, based on a preponderance of the evidence or clear and convincing evidence, depending on certain circumstances. The paternity statute only states if there is some evidence and makes it discretionary, which is akin to no standard at all. Without a standard, parties are sure to get varying results, depending on which Judge hears their case. Some judges will set the bar higher than others to revoke the Affidavit. The parties’ interests are far too important to leave the standard open-ended.
Although the legislature did the right thing in enacting a statute to give a biological Father standing to have a relationship with his child, it failed to safeguard legal fathers who will potentially lose their rights to children they have loved and raised for years, or at the very least, have those rights challenged. As a result, a child may lose the only Father he has ever known in one jurisdiction, and a child in a similar situation in another jurisdiction will not. The problems that may result from the legislature’s failure to adequately define its terms and set standards are likely to be numerous and unless additional legislation is enacted, will likely take years of case law to sort out.