Posted 1/30/12 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

            This article will explore some different facets of Michigan paternity law through a series of hypothetical paternity disputes.  Paternity can present some complicated legal issues.  Many clients believe they have a right to claim a child as their own, but find this is not the case.  Before getting started with the hypotheticals, however, it may be useful to define a term which will frequently appear, “Putative Father.”  A “Putative Father” is an alleged father who has not been proven to be the biological father.

1.       Putative Father “John” is unmarried.  John’s girlfriend conceives and claims she is pregnant by him.  He believes this to be true.  At the time of childbirth, still unmarried, both John and Mother sign an Affidavit of Parentage at the hospital.

          Q: Is John the legal father?

          A: Yes.  An acknowledgment of paternity under the Acknowledgment of Parentage Act, MCL 722.1001 et seq., is the basis for court-ordered support, custody, or parenting time without further adjudication as to proof of fatherhood. The act provides that if the parentage of a child is acknowledged under the act, the child will have the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage.

          Q: Is John still considered a “Putative Father”?

          A. No.  Unless the Affidavit of Parentage is revoked–a process which is explained below–John will be considered the natural father of the child.

2.       Later, John and Mother marry.  The marriage sours, and John decides to divorce.  John comes to believe that he is not the child’s biological father. 

          Q: What are John’s choices?

          A: John can contest his paternity of the child in his divorce case.   Serafin v Serafin, 401 Mich 629, 258 NW2d 461 (1977); MCL 552.29. John can do this by filing a motion to revoke the Affidavit of Parentage.   Revocation of an Affidavit of Parentage is only possible when a claim for revocation is supported by facts that constitute one of the following: 1) Mistake of fact; 2) Newly discovered evidence that by due diligence could not have been found before the Affidavit was signed; 3) Fraud; 4) Misrepresentation or misconduct; or 5) Duress in signing the AOP. Revocation also requires that John convince the court that such an action would be equitable, i.e, “fair,” under the circumstances.

             Mother also has the right to contest John’s paternity of the child in the divorce case.  However, if neither John nor Mother contests paternity in the divorce case, the issue will be forever closed. A support order arising from a divorce decree constitutes an adjudication of paternity and establishes the duty of support. A subsequent proceeding to relitigate the issue of the ex-husband’s paternity is barred.  Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986).

3.       While John is married, Mother comes to him and claims that he is not the child’s biological father.  A third party, “Jack,” comes forward, claiming to be the biological father, and desires to acquire the rights of a legal father. 

          Q: What rights do the parties have to contest paternity?

            A: Either John or Mother can contest paternity by initiating a court case as described above.  With respect to Jack, until such time as the Affidavit of Parentage is revoked, he has no right to contest paternity through the court. If an acknowledgment of parentage has been properly executed, subsequent recognition of a person as the father in an Order of Filiation by way of a paternity action cannot occur unless the acknowledgment has been revoked. Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006).  Furthermore, an action or motion to revoke an Affidavit of Parentage can only be brought by the mother, the man who signed the Affidavit, the child, or the county prosecutor.   This means that Jack may never get the right to bring a paternity case.         

 4.         Assume that, instead of giving birth to the child before marrying John, Mother gave birth while married to John.       

             Q: Does this change the rights of the parties to contest paternity?

             A: No.  Either John or Mother can still contest paternity through the court, as described above.  With respect to Jack, he has no right to contest paternity unless John or Mother initiates a court case and the court in such case issues a Final Order that the child in question is illegitimate.  Only then would Jack be allowed to start a paternity case.  Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991); MCL 722.711(a).

 5.         Continuing from number 4, Mother subsequently files for divorce, and contests John’s paternity of the child.  A genetic test is conducted, and the court finds that John is not the child’s biological father.  John, who has raised the child as his own, still seeks custody, and Mother still seeks child support from John.             

             Q: Can John still seek custody of the child in the divorce?

          A: Yes. John could still be awarded custody of the child under these circumstances under the theory of equitable parenthood.  Under this theory, a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.  Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987).

             Q: Can Mother seek child support from John for the child?

          A: Yes. Mother could be awarded child support from John under these circumstances under the theory of equitable estoppel.  Equitable estoppel arises where a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, the other party justifiably relies and acts on that belief, and the other party will be prejudiced if the first party is allowed to deny the existence of those facts. Soltis v First of America Bank-Muskegon, 203 MichApp 435, 513 NW2d 148 1994.  The Court of Appeals has applied this doctrine to estop a husband from denying a support obligation to a child born during marriage, but of whom he is not the biological father.  See, e.g., Nygard v Nygard, 156 MichApp 94, 401 NW2d 323 (1986).

 6.         Now assume the following: Mother gave birth to the child before marrying John, and a third party, Jack, signed the Affidavit of Parentage as the father.  John later weds Mother.  John treats the child as his own.  Mother filed for divorce, and seeks child support from John for the child, while refusing to revoke the Affidavit of Parentage.  Jack likewise refuses to revoke the Affidavit.  John wants custody of the child. 

             Q: Can John contest the paternity of the child?

             A: No. Until such time as the Affidavit of Parentage is revoked, he has no right to contest the paternity of this child in his divorce case. Sinicropi, supra.

            Q: Can John still seek custody of the child in the divorce?

             A: No. The Supreme Court has held that “the Legislature, not the judiciary, is the appropriate entity to weigh the sensitive public policy issues involved in creating or extending parental rights to persons with no biological or marital link to a child. Therefore, we will not extend the doctrines of equitable parenthood or equitable estoppel outside the context of marriage.”  Van v Zahorik, 460 Mich 320, 597 NW2d 15 (1999). 

             Q: Can Mother seek child support from John for the child?

             A: No. See Van, supra.

Posted 9/15/11 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

 Generally, an individual must be a lawful permanent resident (LPR or “green card” holder) prior to applying for citizenship.  However, if the individual honorably served in time of war or declared hostilities during a period designated by the President through Executive Order, that individual does not need to be a LPR and, in fact, the individual may be in undocumented status when applying for citizenship.  [However, the individual would need to be physically present in the United States or qualifying area at the time of enlistment, reenlistment, or induction.]  LPR status is also not required for posthumous citizenship due to military service.

 As of the posting of this blog, the periods of war or declared hostilities designated by the President are as follows:

• April 6, 1917 – November 11, 1918
• September 1, 1939 – December 31, 1946
• June 25, 1950 – July 1, 1955
• February 28, 1961 – October 15, 1978
• September 11, 2001 – present

Normally an individual must also be at least 18 years of age or older in order to apply for citizenship.  However, this age requirement is waived when an individual has served in the U.S. military.

 A general requirement for an individual who is seeking citizenship is that the individual must be physically present in the U.S. for at least one-half of the last five years prior to application.  However, this can be waived for individuals who have served in the U.S. military.  Instead, that individual may file if the individual is an LPR who served in the U.S. military for an aggregate period of one year (and if separated from service, the separation was honorable) and the application is filed during service or within 6 months of separation.  For those individuals who are serving or have served during hostilities (as described above), physical presence and residency requirements do not apply.

 There are also additional exceptions that can apply to spouses and children of U.S. military personnel who are applying for U.S. citizenship. 

 The requirements and exceptions described above are not comprehensive but provide a beginning step for those individuals who have served in the U.S. military to evaluate whether they may apply to become a U.S. citizen based upon that service.

 If you believe that you or someone you know may be eligible to become a U.S. Citizen based upon service in the U.S. military, feel free to contact our office for more information and for a complete evaluation on eligibility requirements for that specific individual.

Posted 4/6/11 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

Facebook is an online diary and address book that the world can see forever. While users may think only “friends” can view their postings, some of those friends may not be so friendly and provide a door into the postings and photos. Furthermore, Facebook has stored every page as it was posted since its inception. Even though you think you delete it, all of those embarrassing rants and photos are still available and stored.  Forever (at least up until now).  And subject to subpoena for use in your divorce or custody case.  ADAM attorneys routinely use these incriminating postings in evidentiary hearings.

Clients are however not advised to destroy evidence that already exists. Destroying evidence is not allowed and a party to a case who does so may be subject to court sanctions for “despoilation.” Better not to create the evidence in the first place. 

So, lay off the social media while your case is pending and spend the time directly interacting with other humans.

Posted 2/14/11 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

             The state of child custody law is becoming unsettled in northern Michigan due to newly-created uncertainty as to exactly what a parent has to show in order to modify a prior custody order. 

            The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests.  MCL  722.27(1)(c). 

            However, in 2004 the Court of Appeals removed the “change of circumstances” requirement in a case involving a parent’s attempt to change a prior custody order that was arrived at by stipulation, rather than by a judicial ruling applying the statutory child custody factors (i.e., “best interest factors”) to evidence given at a hearing.  See Thompson v Thompson, 261 Mich App 353.  The attempted change occurred at trial, and the order sought to be changed was a temporary pre-judgment custody order.  Until just recently, it had always been thought that the rule of Thompson only applied to temporary, pre-judgment custody orders, and that where the parties’ stipulation was the sole basis for a temporary order, no change of circumstances needed to be shown for such an order to be modified in a pre-trial evidentiary hearing, or at trial itself.

            This thinking has been altered in Charlevoix County and Manistee County by the successful application of Thompson to stipulated custody orders contained in consent judgments–that is, custody orders arrived at by consent, contained in court decrees that are not contemplated to be temporary at all, such as consent judgments of divorce.  The significance of extending Thompson from stipulated temporary orders to consent judgments is substantial.  The “change of circumstances” requirement is often an impossible burden to overcome for a parent seeking to modify custody.  The removal of this requirement makes it far more likely that a custody motion will be given serious consideration by a court.  If a change of circumstances is no longer required for a custody order contained in a consent judgment, then a majority of the divorce judgments in this state (a conservative estimate is that 75% of divorce judgments are consent judgments) immediately become more vulnerable to a successful custody challenge. 

             Parents in the counties above successfully argued that the reasoning in Thompson, and another Court of Appeals case–Greenlee v Davis (Docket No.285036)–compelled the extension of Thompson to consent judgments.  Greenlee, decided in 2008, held that the change of circumstances requirement “only applies to cases in which a party is attempting to alter or modify a previous custody order, such that the trial court would be required to reconsider a previous determination of the best interest factors.”  Greenlee regarded a party’s attempt to modify a stipulated temporary order memorialized in a consent judgment–in that case, a consent judgment of filiation.  Greenlee affirmed the trial court’s holding that a “consent judgment of filiation was not a valid custody order for purposes of MCL 722.27, such that it was not required to find proper cause or change of circumstances before modifying or amending the order.”  Greenlee observed that because “nothing in the record indicates that the trial court, before signing the judgment of filiation, considered the best interest factors,” in the subsequent action to modify the custody order therein “the trial court did not reconsider a previous determination of the best interest factors.”

            Greenlee relied upon the published opinion of Thompson, above. Thompson held that a stipulated temporary custody order did not constitute an original custody award pursuant to MCL 722.27(1)(c), and that therefore neither a showing of proper cause nor changed circumstances was required in order to modify such an order.  Thompson emphasized that as to the temporary order “there was no evidentiary hearing regarding the interest factors.”  The parents in Charlevoix and Manistee argued that it was this lack of a consideration of the best interests factors in the first instance which distinguished Thompson from a case where the prior order was the product of an evidentiary hearing–Vodvarka v Grasmeyer, 259 Mich App 499 (2003).  The Thompson court itself observed the same: “We note that in Vodvarka…the underlying circumstances were different, as the defendant was requesting a reevaluation of the trial court’s prior award of custody and was not seeking an initial evidentiary hearing on custody.  In the present case, there was no evaluation.  Defendant was waiting for the trial court to make its first evaluation.”

            It was successfully argued above that the extension of Thompson to stipulated custody orders contained in final judgments was appropriate, on the grounds that a stipulated custody order contained in a final judgment is not intrinsically more likely to reflect a child’s best interests than one obtained pre-judgment.  In both instances, the custodial arrangement is based solely on the evaluation of the parties rather than the court.  In either context, it remains true that parties cannot conclusively agree regarding child custody.  It was this concern, that a trial court not behave unquestioningly with respect to a child’s best interests, that drove the reasoning in Thompson: “If we were to agree with plaintiff, in essence, a party who stipulates a temporary custody agreement would not be able to have an evidentiary hearing unless a change of circumstances or proper cause was shown.  This is improper because defendant is entitled to have the trial court make findings on the best interests factors.”  This argument was decisive in Charlevoix and Manistee counties, where the respective circuit court Judges held that, because there was no substantive difference between stipulated temporary custody orders and stipulated custody orders contained in consent judgments, the same analysis should be applied to both, the result being that a change of circumstances would no longer be required to change the custody provisions of a final judgment where the judgment was a product of settlement rather than trial.

            As noted above, the repercussions of this change could be immense.  The current state of affairs is untenable, as previously well-settled child custody law is being thrown into disarray, with splits developing amongst the various circuits of the state.  In the meantime, custody orders that might have previously been considered to be “untouchable” are vulnerable to modification by parents who no longer need to show a change of circumstances in order to move forward with their motion.  Moreover, it may be some time before the Court of Appeals is presented with a proper case to resolve this ambiguity.  As an affected parent, the most prudent course of action at this time may be to seek a legal “check up” of any controlling custody order, and obtain counsel from an attorney experienced with these new developments in the law.

Posted 12/14/10 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

 Family law is an area of the law that deals with family-related issues and domestic relations, including custody and divorce. These issues can be emotional and traumatic. Choosing your divorce lawyer can be one of the most important things you do. A person’s decisions in divorce and custody actions can have long lasting implications on not only the parties, but for the entire family.

 A family law attorney must be able to couple knowledge with understanding and compassion. A family law attorney must be able to solve problems. Five years after the divorce, you will not be able to remember who “won” or “lost,” but you will remember whether the divorce was too expensive, whether your financial settlement or division was extremely unbalanced, and how your children either suffered or survived after resolution of your case. An attorney who does not work to solve problems before going to court will not be a good family law attorney.

 In Michigan, divorce proceedings follow the statutory requirements as found in the Michigan Compiled Laws. To file for a divorce, at least one of the parties must have lived in Michigan for 180 days or more, and in the county where the case will be filed for at least 10 days.  A Complaint for Divorce is filed with the circuit court of the county where you or your spouse resides. Michigan law allows a divorce to be obtained without a determination of fault.

 If you are served with a divorce complaint, you must file an answer within 21 days (or within 28 days in limited circumstances). If you fail to file an answer within 21 days, you can be defaulted. A default which is not set aside could work to your disadvantage when the court decides custody, parenting time, support, and property settlement issues.

 In Michigan it takes a minimum of 60 days to get divorced. If there are minor children, the waiting period is 180 days. However, this 180-day waiting period may be reduced if “undue hardship” can be proven. However, in no case can the waiting period be shortened to less than 60 days.

 Property Division:

 The division of property in Michigan is not governed by any set rules. The division of property need not be equal, but it must be equitable. Nevertheless, the courts have certain principles of general application. In general, the court will consider the following factors in determining property awards:

a.         duration of the marriage
b.         contributions of the parties to the marital estate
c.         age of the parties
d.         health of the parties
e.         life status of the parties
f.          necessities and circumstances of the parties
g.         earning abilities of the parties
h.         past relations and conduct of the parties (e.g. fault); and
i.          general principles of equity

As the above factors indicate, fault in causing the breakdown of the marriage is still a consideration in the division of property. This is true notwithstanding the fact that Michigan is a no fault divorce state. Fault can include things like sexual infidelity, domestic violence, substance dependency/alcoholism, and gambling addiction. 

Spousal Support:

What was formerly referred to as alimony is now called spousal support. In determining if a party should be awarded spousal support, the court will take into account the following factors:

a.         The past relations and conduct of the parties
b.         The length of the marriage
c.         The ability of the parties to work
d.         The source of and amount of property awarded to the parties
e.         The age of the parties
f.          The ability of the parties to pay alimony
g.         The present situation of the parties
h.         The needs of the parties
i.          The health of the parties
j.          The prior standard of living of the parties and whether either is responsible for the support of others
k.         General principles of equity

 Fault in causing the breakdown of the marriage can also be a factor in awarding spousal support. In certain rare cases, spousal support can be awarded on a permanent basis.

 Child Custody:

 Custody is one of the most emotional and traumatic issues in any family court case. The “Child Custody Act” sets forth eleven factors that a judge must consider when making a custody decision. In determining which parent should have custody of the minor children, the court will determine what is in the “best interests of the child.” The court will look to the following factors in making a decision as to what is in a child’s best interests:

 a.         The love, affection, and other emotional ties existing between the parties involved and the child.

 b.         The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of  the child in its religion or creed, if any.

 c.         The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other            material needs.

 d.         The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

 e.         The permanence, as a family unit, of the existing or proposed custodial home or homes.

 f.          The moral fitness of the parties involved.

 g.         The mental and physical health of the parties involved.

 h.         The home, school, and community record of the child.

 i.          The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

j.          The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

k.         Any other factor considered by the court to be relevant to a particular child custody dispute.

 The court has broad discretion in determining which factors are the most important. Lengthy disputes over child custody are very disruptive to all concerned, especially the children.

 The attorneys at Sterling Law Office have almost four decades of combined experience representing individuals in family law matters.  Our attorneys are skilled individuals who know the judges, understand the processes of family court, and will guide you through the system.

 Posted 11/9/10 – Approved by Lea Ann Sterling

The information presented in this article is for general information only and should not be construed as legal advice.

     Sterling Law Office is pleased to announce that since that time, it has fulfilled its commitment and Attorney Wendy K. Bailey has completed the Collaborative Divorce Practice training through the Collaborative Practice Institute of Michigan (CPIM) and is currently accepting collaborative divorce and family law cases. 

     Wendy Bailey is a member of two multi-disciplinary teams of professionals who have been trained specifically in the collaborative style of settlement and conflict resolution in Northern Michigan.  She is a member of the Up North Collaborative Divorce Professionals, which primarily serves Leelanau, Grand Traverse, Antrim, and Benzie Counties.  She is also a member of the Cadillac Area Collaborative Divorce Professionals, which primarily serves Wexford, Missaukee, and Osceola Counties.  If your case is not in one of the above-mentioned counties, please contact our office to determine if we can assist you in the collaborative process or direct you to someone who can.

     For more information on collaborative divorce, visit the International Academy of Collaborative Professionals’ website: www.collaborativepractice.com and visit Collaborative Practice Institute of Michigan’s website: www.collaborativepracticemi.org.  The Up North Collaborative Divorce Professionals team is currently developing a website, which should be functional in the near future at: www.upnorthcollaborativedivorce.com.  Please feel free to read the original collaborative divorce blog entry, posted on 11/2/07.

 Posted 10/1/10

Approved by Lea Ann Sterling

 The information presented in this article is for general information only and should not be construed to be legal advice.

Posted 3/24/10

Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), a complaint for nondischargeability is governed by the provisions of § 523 of the United States Bankruptcy Code as they existed after BAPCPA’s passage. Section 523(a)(15) provides in relevant part that:

(a) A discharge under section 727, . . . of this section does not discharge an   individual debtor from any debt —

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5)[domestic support obligation] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit[.]

The changes made to § 523(a)(15) by BAPCPA removed the balancing language that allowed a debtor to discharge a non-support divorce debt if the debtor could demonstrate that the debtor did not have the ability to pay the debt or the benefit of discharge to the debtor is greater than the detriment to the former spouse. It is no longer necessary for the court to make such a determination. The plain language of the statute now provides that all debts which qualify as domestic support obligations are nondischargeable.

In summary, to be excepted from discharge under this provision, the debt must: (1) be to a spouse, former spouse, or child of the debtor; (2) not be of the type described in § 523(a)(5), i.e. not a domestic support obligation; and (3) have been incurred in the course of a divorce or separation or in connection with a separation agreement, divorce, decree, or other order of a court.

In Michigan, the controlling Court on this issue is the Sixth Circuit Federal Court of Appeals.  The Sixth Circuit has ruled that a divorce judgment imposes upon a payor spouse the obligation to indemnify a former spouse if one of the parties’ joint creditors should call upon that spouse to pay a debt that the payor spouse was ordered to pay.  Gibson v. Gibson (In Re Gibson), 219 B.R. 195 (6^th Cir. BAP 1998).   The Gibson panel found that when a debtor incurs an obligation to pay a joint debt as part of a divorce proceeding, a former spouse could, by enforcing the terms of the divorce judgment, compel the debtor to honor the obligation, even in the absence of a hold-harmless clause and even though the debt was payable to a third party.

Therefore, for a person facing potential divorce and considering a Bankruptcy, it is absolutely essential to file for Bankruptcy before a divorce is final–otherwise, debts that might otherwise be discharged in a Bankruptcy may be transformed into non-dischargeable debts that can burden a payor spouse long after the ink is dry on a Judgment of Divorce.

Posted March 5, 2010