In a child protective proceeding filed under juvenile provisions of the Michigan Probate Code, it is not unusual that the legal father of the minor child is not the biological father. Conflicting provisions of the Revocation of Paternity Act and the Probate Code govern how a biological father is permitted to establish paternity when a child protection action is pending.
The Revocation of Paternity Act (ROPA), MCL 722.1431, et. seq. permits the court to find that a child was “born out of wedlock”1 and enter an order that a man biologically related to the child is, in fact, the child’s legal father. Chapter XIIA of the Probate Code, MCL 712A.1, et. seq., governs placement options for the court when a child is removed from parental care pursuant to a child protection action.
The Child Protective Proceedings Benchbook2 summarizing law and procedure under 712A.1 cites In re KH for the law pertaining to permissible placement options when a child has a legal father who is not the child’s biological father:
“We hold that our court rules do not permit a biological father to participate in a child protective proceeding where a legal father exists. Indeed, where a legal father exists, a biological father cannot properly be considered even a putative father.”3
The rule referred to by the KH court was MCR 5.921(D), now MCR 3.921(D), which states:
Putative Fathers. If, at any time during the pendency of a proceeding the court determines that the minor has no father as defined in MCR 3.903(A)(7), the court may, in its discretion, take appropriate action as described in this subrule.
Appropriate action includes taking steps to ascertain the identity of the biological father and include that person in the proceedings. However, taking such action is predicated on first finding that the minor has no father as defined in MCR 3.903(A)(7). That subrule defines “father” as “a man married to the mother at any time from a minor’s conception to the minor’s birth, unless a court has determined, after notice and a hearing, that the minor was conceived or born during the marriage, but is not the issue of the marriage.” Reading In re KH and the related court rules together, the conclusion seems to be that if a minor has a legal father, i.e., a man married to the mother at the time of conception or birth, a biological father is prohibited from participating in a child protective proceeding.
ROPA at MCL 722.1441(3) governs an action by an “alleged father” where a child has a “presumed father.” A “presumed father” under ROPA is the same as a “father” under MCR 3.903(A) (7), i.e., a man married to the mother at the time of the child’s conception or birth. MCL 722.1441(3) permits an alleged father to take action to establish his paternity. MCL 722.1443(1) further addresses that action:
An original action under this act shall be filed in the circuit court for the county in which the mother or the child resides or, if neither the mother nor the child reside in this state, in the circuit court for the county in which the child was born. If an action for the support, custody, or parenting time of the child exists at any stage of the proceedings in a circuit court of this state or if an action under section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2, is pending in a circuit court of this state, an action under this act shall be brought by motion in the existing case under rules adopted by the supreme court. (Emphasis added).
Under ROPA, it seems clear that a man claiming to be the biological father of a child who has a legal or presumed father must, if he wants to establish his paternity, file an action by motion in the child protective proceeding. The emphasized part of MCL 722.1443(1) above contradicts the holding in In re KH, which construes the court rule as prohibiting the alleged biological father from participating in the child protective proceeding.
RULE OF PRACTICE OR MATTER OF SUBSTANTIVE LAW
Resolving the conflict involves determining whether MCL 722.1443(1) is a rule of practice procedure or matter of substantive law. MCR 1.104 provides that “[r]ules of practice set forth in any statute, if not in conflict with any of these rules, are effective until superseded by rules adopted by the Supreme Court.”4
In Froede v. Holland Ladder & Manufacturing Company, the Michigan Court of Appeals observed that “where there is a conflict between a statute and a court rule, the court rule prevails if it governs practice and procedure.”5 In Froede, the defendants claimed that a juror failed to disclose her status as a convicted felon not currently under sentence. Pursuant to court rule, convicted felons were prohibited from serving as jurors, but a conflicting statute provided that convicted felons were prohibited from serving only if currently under sentence. The court found that the statute was part of a “legislative intent to ‘remove barriers to the reintegration into society of former offenders’” and that the court rule frustrated that legislative intent.6 The statute, therefore, was not merely procedural regarding how a jury is selected but was substantive with regard to an individual’s legislatively established right to serve on a jury.
Parental rights are constitutionally protected. As stated in In re Rood, “[a] natural parent has a fundamental liberty interest ‘in the care, custody, and management’” of his child that is protected by the Fourteenth Amendment of the United States Constitution, Santosky, 455 U.S. at 753, 102 S. Ct. 1388, and by article 1, § 17, of the Michigan Constitution, see Reist v. Bay Co. Circuit Judge, 396 Mich. 326, 341-342, 241 N.W.2d 55 (1976) (Levin, J.) (stating that parents and children have fundamental rights “in their mutual support and society”).7
MCL 722.1443(1) establishes rights for an alleged father when a legal father exists. When a juvenile court proceeding is pending, juvenile court custody orders supersede other courts’ custody orders.8 Because juvenile court custody orders supersede other courts’ orders, the pursuit of paternity by motion in the juvenile case is part of the legislative scheme to remove barriers to establishing that right. Like the rationale in Froede, supra, that action by the legislature is substantive, not simply procedural, and prevails over conflicting court rule.9
CONCLUSION
It appears, then, that a biological father can participate in a child protective proceeding where a legal father exists and if a biological father seeks to establish his paternity under these circumstances, the biological father must pursue his remedy by motion in the child protection proceeding. It is certainly possible that the biological father won’t ultimately prevail, but he must still pursue his paternity action by motion in the child protective proceeding.
If a biological father establishes paternity in a child protection proceeding, can he also obtain a custody/parenting time order in the same proceeding? In other words, does the juvenile court have jurisdiction to enter custody/parenting time orders as part of the child protection proceeding?
In re AP holds that:
“a trial court that is part of a circuit court’s family division under MCL 600.1011 presiding over a juvenile case has jurisdiction to address related actions under the [Child Custody Act (CCA)] consistent with MCL 600.1021and MCL 600.1023, as well as local court rules. We further hold that when exercising its jurisdiction, a trial court must abide by the relevant procedural and substantive requirements of the CCA.”10
In In re AP, the alleged father filed and prevailed in a paternity action before commencement of the juvenile court action. His motion for custody was filed in the juvenile case. An order granting him legal custody was entered under the juvenile case number. Because the Michigan Court of Appeals found that the circuit court and juvenile court are part of the family court and the juvenile court judge followed the CCA in making the custody findings, there was no error when the custody order was entered in the course of the juvenile case.11 It is not clear whether the Court of Appeals considered it significant that the paternity case was filed as a separate action prior to commencement of the juvenile case.
In Demski v. Petlick, the alleged father filed an action under ROPA and obtained an order establishing his paternity.12 There was no child protection case pending. The trial judge ordered that the now-legal father would have joint custody and parenting time with the child. The child’s mother and her husband appealed, claiming, in part, that ROPA does not allow entry of custody/parenting time orders in the context of a paternity case. The Court of Appeals found that “[o]nce the trial court made a determination of paternity, it had authority under MCL 722.27(1) to enter orders regarding child custody and parenting time.”13
By combining that part of MCL 722.1443(1) which mandates that a paternity action be filed as a motion in a pending child protection case with the holdings in In re AP and Demski, the logical conclusion can be summarized as follows:
- If a juvenile action is pending, an alleged father must file an action to revoke paternity by motion in the juvenile case. As part of the juvenile case, the trial court may enter a paternity order.
- After entry of the paternity order, the trial court may also in the juvenile case enter orders for custody and parenting time following the procedures of the Child Custody Act.
- If this analysis is correct, it seems that all orders would enter under the juvenile court file number. Following this procedure would consolidate all issues involving the minor and present those issues to the same family court judge.
- The only filing fee assessed to the alleged father would be a motion fee in the juvenile case.
The orders should be provided to the Friend of the Court, and Friend of the Court services could be utilized for support determination and enforcement and any future custody and/or parenting time disputes.