On February 22nd, 2018, the Michigan Court of Appeals released their decision in Taylor v Taylor, 323 Mich App 197; 916 NW2d 652 (2018), holding that the child’s three year age limit in the Revocation of Paternity Act does not apply when the matter is brought up during a divorce or separate maintenance action.
Husband and wife were married in 2000 but were separated for years before the wife filed for divorce in 2016. While separated, the wife conceived a child with another man that was born in 2011. It is undisputed between the parties that the husband was not the father and this was supported by a DNA test. However, Michigan law presumes that a child born during the marriage is the offspring of the husband and automatically confers legal paternity upon him. During the divorce proceedings, husband requested the court to make a paternity determination revoking his parentage and declaring the biological father to be the legal father of the child born in 2011. The trial court rejected these requests and cited it lacked jurisdiction because the husband did not raise these issues prior to the child’s third birthday. The husband appealed this decision to the Michigan Court of Appeals.
The Revocation of Paternity Act was passed in 2012 to provide a mechanism in the law to establish the paternity of a child born out of wedlock to the biological father. Prior to this law, a child born out of wedlock to a married mother was considered to be the legal child of the husband regardless of what any DNA test says. With the passage of the 2012 law, a petition to revoke paternity can be made by either the mother, the presumed father (in this case, the husband) or the alleged father (in this case, the biological father). Generally, any of these people can only raise the issue of paternity within 3 years of the child’s birth or be barred forever from doing so. However, MCL 722.1441(2) states as follows:
“If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. The requirement that an action be filed within 3 years after the child’s birth does not apply to an action filed on or before 1 year after the effective date of this act.” (Emphasis added to “or”)
The Michigan Court of Appeals ruled that the trial court erred in assuming that all revocation of paternity issues must always be raised within three years of the child’s birth. The language in MCL 722.1441(2) presents two alternatives:
- First alternative: “An action is filed by the presumed father within 3 years after the child’s birth”, or:
- Second alternative: “The presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother”.
The second alternative does not have the child’s third birthday as a deadline for bringing this action. Therefore, the Court of Appeals concluded the Legislature’s intent when drafting this statute was to allow the presumed father to raise the paternity issue in a divorce action WITHOUT ANY REGARD to how old the child is. The husband in this case clearly complied with the second alternative when he raised his issue in divorce court. As a result, the Court of Appeals reversed and sent the case back to the trial court for further revocation of paternity proceedings consistent with its opinion.