The Revocation of Paternity Act is a very complicated statute. Unrepresented parents and even some lawyers can have trouble following all the steps to a successful case. But a recent Michigan Supreme Court opinion says there are no shortcuts to parental rights.
Graham v Foster is a typical Revocation of Paternity Act (RPA) case, if there is such a thing. Sharea Foster was married to Christopher Foster in 2004. In 2009, she gave birth to a son, which the court calls BF. In 2012, the year RPA became law, Shae Graham filed a complaint claiming that he was the father of the minor child, and should be entitled to custody and parenting time. He named Sharea Foster as a defendant, but not Christopher Foster.
Legal Fathers And the Revocation of Paternity Act
Leaving Christopher Foster out of the case was a big deal. Under Michigan law, the person married to the mother of a child at the time that child is conceived or born is legally presumed (meaning assumed) to be that child’s father. That meant that Christopher Foster was automatically the legal father of BF, with parental rights and obligations. Because he had not been added as a party, Graham was asking the court to terminate Christopher’s parental rights without any notice or opportunity to respond or raise defenses.
The Revocation of Paternity Act does allow for a court to terminate the rights of a “presumed father” if the “alleged father” shows he didn’t know or have reason to know the mother was married at the time of conception (or she was not yet married), and either:
- He, the mother, and the presumed father all recognized his biological relationship to the child at some point
- The presumed father failed to care for the child for at least 2 years, or
- The presumed father lives separately from the child.
If those conditions are met, the court will consider DNA evidence as well as the best interest of the child before deciding whether to change the child’s legal parent from the presumed father (here Christopher Foster) to the alleged father (here Shae Graham).
Presumed Fathers are Necessary Parties
The Michigan Supreme Court reviewed Graham v Foster to determine whether the presumed father is a “necessary party” to an RPA action. In other words, can a claim for custody under RPA continue without the legal dad? The Court found:
“Initially, the Court of Appeals was correct to conclude that, because plaintiff seeks a determination that BF was born out of wedlock and that he is the actual father of BF, plaintiff’s action necessarily seeks to terminate Christopher’s parental rights. This makes Christopher a ‘person having such [an] interest in the subject matter of [the] action that [his] presence in the action is essential to permit the court to render complete relief,’ meaning that he ‘must be made [a] part[y] . . . .’ MCR 2.205(A).”
Because Christopher Foster could have lost his right to BF in the case, he had to be given notice and an opportunity to present defenses.
RPA Statute of Limitations Exception
The RPA has a 3 year statute of limitations — any claim for paternity must generally be filed prior to the minor child’s third birthday. However, the Michigan legislature built in a one year statute of limitations exception. The law allowed anyone who would have otherwise had a RPA claim to file that claim by June 2013 (one year after the law was passed). Graham took advantage of that exception in his case against Sharea Foster, but created a problem for himself by failing to add Christopher Foster in time. If Christopher was added later he would be able to defend against the RPA claim by saying it was filed to late. The issue between the courts was whether they could rule on that defense without him present.
Raising Defenses for Others is No Good
When Graham was at the Court of Appeals level, that court had also determined Christopher was a necessary party. However, it determined that failing to add him was not a fatal error to the case. First, it said that Sharea could offer the statute of limitations claim on her own behalf. Second, even if he had to raise the claim, the court said it would lose because Graham’s initial claim against Sharea was filed on time.
The Michigan Supreme Court said not so fast. Since Graham’s claim against Sharea was filed on time, she did not have a statute of limitations defense of her own. She also could not raise someone else’s defense in her case.
Consider a simple example: David lets Ella use her house while he is away on business. Ella lets Joseph spend the night. David objects and sues Joseph for trespassing. Joseph cannot use Ella’s defense that David allowed her to use the property because David had not allowed him to use the property.
Similarly here, Sharea could not use Christopher’s defense that the case was filed too late to defend her own custodial claim. Christopher would need to assert it himself.
Ruling On Supposed Defenses Is No Good Either
The Court of Appeals also made a mistake when it ruled on whether Christopher’s statute of limitations defense would be successful. The Supreme Court said:
“The ability of a nonparty to raise a particular defense should not be preemptively adjudicated in the nonparty’s absence.”
In other words, a person needs to be added to the case and given an opportunity to raise his or her defenses before the court decides if they will succeed.
The Supreme Court’s decision in Graham emphasizes the fact that there are no short cuts to the Revocation of Paternity Act. Nor should there be. A presumed father’s right to care for young people he helped raise is being taken away. At the very least he should be allowed to hear from the judge why that right is being taken away and raise defenses to protect his interests in being a parent.
Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC. She has handled a number of Revocation of Paternity actions. If you have a complicated custody situation, contact Schmidt & Long, PLLC, today for a free consultation.