235-1970 PATERNITY WHERE TO FILE CASE, WHEN TO FILE, BEFORE BABY BORN? Flint Paternity Lawyer Terry Bankert

PATERNITY OVERVIEW 06/17/12 [ Source-Michigan Judges BenchBook]

A. Governing Authority
§10.1 The governing authority for paternity actions is the Paternity Act, MCL 722.711 et seq., and MCR 3.217, Actions Under the Paternity Act.

Presented here by Flint Divorce, Paternity, Child Custody, and Child Support Flint Attorney Terry Bankert 810-235-1970, http://www.atorneybankert.com

§10.3 To establish standing in a paternity action, the plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). A child is born out of wedlock if the mother was unmarried for the entire time from conception to birth or if a court has previously determined that the child was not the issue of the marriage. MCL 722.711(a); Spielmaker v Lee, 205 Mich App 51, 517 NW2d 558 (1994).

Once the pleading requirements are met in a paternity action, the court has subject matter jurisdiction to determine whether the child was born out of wedlock. Department of Soc Servs v Carter, 201 Mich App 643, 506 NW2d 603 (1993); see also McHone v Sosnowski, 239 Mich App 674, 609 NW2d 844 (2000) (following Girard). Denying a putative father standing to challenge paternity constitutes a denial of due process only if the putative father has an established relationship with the child. Sinicropi; Family Independence Agency v Heier (In re CAW), No 235731, 2003 Mich App LEXIS 2650 (Oct 23, 2003), vacating and replacing Family Independence Agency v Heier (In re CAW) (On Remand), 259 Mich App 181, 673 NW2d 470 (2003) (due to clerical error).

§10.8 The family division of the circuit court has jurisdiction over paternity actions. MCL 600.1021(1)(h), 722.714(1).
Venue is in the county where the mother or the child resides. If the mother and the child reside outside the state, venue is in the county where the putative father resides or is found. That the child was conceived or born outside of Michigan does not bar a complaint from being entered against the putative father. MCL 722.714(1).
Jurisdiction over a putative father who is out of state can be established under Michigan’s long-arm statute. See MCL 600.705. Paternity may also be established under the UIFSA, which has its own long-arm provisions. See §§10.55–10.47.

Statute of Limitations
§10.9 A paternity action may be instituted while the child’s mother is pregnant or at any time before the child reaches age 18. MCL 722.714(3). However, unless the defendant parent consents, there can be no trial before the child’s birth. MCL 722.715(2).

722.714 Paternity proceeding; parties; venue; action not required; commencement of action; statute of limitations; initiating and conducting proceedings; utilization of child support formula; verification of complaint; charge; summons; default judgment; genetic paternity testing; next friend or guardian ad litem; rights of indigent defendant; order of filiation.
Sec. 4.
(1) An action under this act shall be brought in the circuit court by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the family independence agency as provided in this act. The Michigan court rules for civil actions apply to all proceedings under this act. A complaint shall be filed in the county where the mother or child resides. If both the mother and child reside outside of this state, then the complaint shall be filed in the county where the putative father resides or is found. The fact that the child was conceived or born outside of this state is not a bar to entering a complaint against the putative father.
(2) An action to determine paternity shall not be brought under this act if the child’s father acknowledges paternity under the acknowledgment of parentage act, or if the child’s paternity is established under the law of another state.

(3) An action under this act may be commenced during the pregnancy of the child’s mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 1984 and before June 2, 1986, an action under this act may be commenced before January 1, 1995. This subsection applies regardless of whether the cause of action accrued before June 1, 1986 and regardless of whether the cause of action was barred under this subsection before June 1, 1986. A summons issued under this section shall be in the form the court determines and shall be served in the same manner as is provided by court rules for the service of process in civil actions.

(4) If the county family independence agency of the county in which the mother or alleged father resides first determines that she or he has physical possession of the child and is eligible for public assistance or without means to employ an attorney; if the family independence agency is the complainant; or if the mother, alleged father, or child is receiving services under part D of title IV of the social security act, 42 U.S.C. 651 to 667, then the prosecuting attorney or an attorney employed by the county under section 1 of 1941 PA 15, MCL 49.71, shall initiate and conduct proceedings under this act. The prosecuting attorney shall utilize the child support formula developed under section 19 of the friend of the court act, 1982 PA 294, MCL 552.519, as a guideline in petitioning for child support. A complaint filed under this act shall be verified by oath or affirmation.
(5) The party filing the complaint shall name the person believed to be the father of the child and state in the complaint the time and place, as near as possible, when and where the mother became pregnant. If the family independence agency is the plaintiff, the required facts shall be stated upon information and belief.
(6) Upon the filing of a complaint, the court shall issue a summons against the named defendant. If the defendant does not file and serve a responsive pleading as required by the court rules, the court may enter a default judgment. Neither party is required to testify before entry of a default judgment in a proceeding under this act.
(7) If, after service of process, the parties fail to consent to an order naming the man as the child’s father as provided in this act within the time permitted for a responsive pleading, then the family independence agency or its designee may file and serve both the mother and the alleged father with a notice requiring that the mother, alleged father, and child appear for genetic paternity testing as provided in section 6.
(8) If the mother, alleged father, or child does not appear for genetic paternity testing as provided in subsection (7), then the family independence agency or its designee may apply to the court for an order compelling genetic paternity tests as provided in section 6 or may seek other relief as permitted by statute or court rule.
(9) It is unnecessary in any proceedings under this act commenced by or against a minor to have a next friend or guardian ad litem appointed for the minor unless required by the circuit judge. A minor may prosecute or defend any proceedings in the same manner and with the same effect as if he or she were of legal age.
(10) If a child born out of wedlock is being supported in whole or in part by public assistance, including medical assistance, the family independence agency may file a complaint on behalf of the child in the circuit court in the county in which the child resides. The mother or alleged father of the child shall be made a party plaintiff and notified of the hearing on the complaint by summons. The complaint made by the family independence agency shall be verified by the director of the family independence agency, or his or her designated representative, or by the director of the county family independence agency of the county in which an action is brought, or the county director’s designated representative.
(11) 1986 PA 107, which added this subsection, does not affect the rights of an indigent defendant in proceedings under this act as established by decisions of the courts of this state before June 1, 1986.
(12) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7. Regardless of who commences an action under this act, an order of filiation entered under this act has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father.
——

722.715 Mother and alleged father competent to testify; cross-examination; exclusion of public; continuance until birth of child.
Sec. 5.
(1) Both the mother and the alleged father of the child shall be competent to testify, and if either gives evidence he or she shall be subject to cross-examination. The court may exclude the general public from the room where proceedings are held, pursuant to this act, admitting only persons directly interested in the case, including the officers of the court, officers or public welfare agents presenting the case, and witnesses.
(2) If the child is not born at the time set for trial, the case, unless the defendant mother or defendant father consents to trial, shall be continued until the child is born.

Hope this helps, Terry Bankert 810-235-1970

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