Defendant's Attorney:

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Saginaw, Michigan paternity law lawyers represented the Plaintiff and Defendant.

This action concerns whether the trial court followed the proper procedures under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq., when deciding plaintiff's motion to revoke paternity. The record indicates that the parties were married in 2006. Sometime afterward, defendant moved to Traverse City and became romantically involved with another man. LMK was conceived during that time, and was born in 2010. There is no dispute that plaintiff is not LMK's biological father. Plaintiff was aware of that fact from the time he learned of defendant's pregnancy. Both plaintiff and defendant agreed that plaintiff would raise LMK as his own son. In the years following LMK's birth, plaintiff and defendant attempted to salvage their marriage, but were ultimately unsuccessful. In 2018, plaintiff filed for divorce. A consent judgment of divorce

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was entered in March 2019. The parties both affirmatively represented to the court that LMK was a child of the marriage. The consent judgment granted the parties joint legal and physical custody of LMK. The parties agreed that plaintiff would not be required to pay child support and they opted out of Friend of the Court (FOC) services. The parties were required to maintain health insurance for LMK, and plaintiff agreed to pay for "any uninsured medical expenses." There was nothing in the divorce judgment indicating a dispute over the child's paternity.[2]

In December 2020, defendant moved to opt back into FOC services and to modify custody and parenting time. She also requested child support. In a later motion, defendant explained that the 2020 motion was "called off" based on an agreement between the parties. In January 2022, defendant again moved for a change of custody and parenting time, claiming that LMK was "adamant that he does not want contact with the Plaintiff. [Plaintiff] has not attempted to see and or contact the child for several months." Defendant filed another motion in January 2022, in which she again requested child support.

In April 2022, plaintiff moved to revoke his paternity of LMK. Plaintiff argued that "MCL 722.1441(2) allows a presumed father to bring an action . . . to determine that the child was born out of wedlock, and not the natural child of the Plaintiff." Plaintiff contended that the parties had agreed to no payment of child support "based in part on the clearly dysfunctional and non-traditional relationship that had occurred to date." Plaintiff maintained that the parties had known that plaintiff was not LMK's biological father and that "[LMK] disavows any relationship with the Plaintiff, and does not look to or consider the Plaintiff his Father."

Plaintiff asserted that the reason paternity was not addressed during "the divorce was, while good intentioned but grossly misguided, in part to allow for [LMK] to remain on the health insurance of the Plaintiff." He explained that a disagreement had come up between himself and defendant because defendant wanted to move to Traverse City with LMK. As a result of that disagreement, plaintiff claimed that defendant "began to position [LMK] to be defiant towards" plaintiff in order to try to force plaintiff to agree to the move. Plaintiff affirmed that he eventually agreed to the move "after the relationship had been destroyed to the point at which no bond existed between" him and LMK. Plaintiff requested that the judgment of divorce be changed to reflect that he is not LMK's biological father "and therefor[e] has no parental rights or obligations regarding said child based on the information contained in the affidavit and upon other good and equitable means." Plaintiff argued that his motion was permitted under Michigan law even after the consent judgment of divorce was entered.

At a hearing on the matter, defendant's counsel argued that plaintiff could not bring an action challenging paternity because under the law, he had to do so within three years of LMK's birth. Defendant's counsel also contended that there was "no justification to extend the three years

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because they have always known that he was not the biological father of this child." Relying on Glaubius v Glaubius, 306 Mich.App. 157; 855 N.W.2d 221 (2014), plaintiff's counsel maintained that there was no duty on plaintiff's part to challenge paternity during the divorce proceedings and that nothing prevented him from challenging it now. Defendant's counsel countered that the three-year limit still applied to a presumed father and that Glaubius was distinguishable because that case involved a father who did not know during the divorce proceedings that he was not the child's biological father. The trial court asked the parties to submit briefing on the arguments, and the hearing was adjourned.

In her brief, defendant agreed that plaintiff was LMK's presumed father because she had been married to plaintiff when LMK was conceived. Defendant contended that unless a motion for revocation of paternity was brought within three years after a child's birth, paternity could not be revoked "unless there is good cause." Defendant additionally maintained that the divorce was predicated on the understanding that plaintiff "would remain financially responsible for the child." Defendant argued that LMK's biological father had no relationship with LMK and lived in a different state. According to defendant, plaintiff's motion "is about [him] preferring to bastardize the child that he has raised for twelve years in order to avoid paying child support. The requested relief is not in the child's best interests and should be denied with prejudice."

Plaintiff argued that defendant incorrectly cited and applied the standard for revoking the paternity of an "acknowledged father" despite plaintiff's being a "presumed father." According to plaintiff, when parties to a divorce never contest paternity, it merely creates a presumption of paternity, not a dispositive determination of paternity, meaning that he was LMK's presumed father. Plaintiff again contended that a revocation of paternity was permitted even after a judgment of divorce was entered.

A hearing was held in August 2022, during which the trial court denied plaintiff's motion to revoke paternity. The court reasoned:

This gentleman raised this child as his own for years. I understand . . . that he said you're not my dad. That is every kid in that same situation when they get to that age and they get a little cocky. He is going to recognize everything you did for him some day. And hopefully his mother tells him everything you did for him and allows you to have a continuing relationship with him. Because you did raise him as your son. And, you stepped up to the plate, and I think you will, again, have a relationship with him.

The Court has to look very closely before it would terminate a paternity after that many years. Normally it's required they come in within the first couple of years if there is any question. You didn't do that because you were raising him as your own. And for that reason the Court is going to deny the revocation of paternity.

The court subsequently entered an order denying plaintiff's motion to revoke paternity for the reasons stated on the record. Plaintiff moved for reconsideration, but the motion was likewise denied. This appeal followed.

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Given that plaintiff is LMK's presumed father, MCL 722.1441(2) of the ROPA applies to this matter. The statute provides:

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.]...

Klimkewicz v. Klimkewicz, 364783 (Mich. App. Sep 19, 2024)

Klimkewicz v. Klimkewicz, 364783 (Mich. App. Sep 19, 2024)

Outcome: Affirmed

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