April 27, 2005, Introduced by Senators McMANUS, BASHAM and GOSCHKA and referred to the Committee on Families and Human Services.
A bill to amend 1956 PA 205, entitled
"The paternity act,"
by amending sections 1, 4, 6, 7, and 10 (MCL 722.711, 722.714,
722.716, 722.717, and 722.720), sections 1 and 6 as amended by 2000
PA 31, section 4 as amended by 1998 PA 113, section 7 as amended by
2004 PA 209, and section 10 as amended by 2001 PA 109.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. As used in this act:
(a) "Child" means, except as used in section 10(2), a child
born out of wedlock.
(b) (a)
"Child born out of wedlock" means a
any of the
following:
(i) A child begotten
and born to a woman who was not married
from
the conception to the date of birth of the child. , or a
(ii) A child that
whom the court has determined to be a child
born or conceived during a marriage but who is not the issue of
that marriage.
(b)
"Child" means a child born out of wedlock.
(c)
"Mother" means the mother of a child born out of wedlock.
(iii) A child whom the court determines under section 10(2) to
be a child born out of wedlock.
(c) "Child not born out of wedlock" means a child other than a
child born out of wedlock.
(d) "Court" means the circuit court.
(e) "DNA identification profile" means the results of the DNA
identification profiling of genetic testing material.
(f) "DNA identification profiling" means a validated
scientific method of analyzing components of deoxyribonucleic acid
molecules in a sample of genetic testing material to identify the
pattern of the components' chemical structure that is unique to the
individual.
(g)
"State disbursement unit" or "SDU" means the entity
established
in section 6 of the office of child support act, 1971
PA
174, MCL 400.236.
(g) (h)
"Genetic testing material" means a sample
of an
individual's blood, saliva, or tissue collected from the individual
that is used for genetic paternity testing conducted under this
act.
(h) "Mother" means, except as used in section 10(2), the
mother of a child born out of wedlock.
(i) "State disbursement unit" or "SDU" means the entity
established in section 6 of the office of child support act, 1971
PA 174, MCL 400.236.
(j) (i)
"Summary report" means a written summary
of the DNA
identification profile that includes only the following
information:
(i) The court case number, if applicable, the laboratory case
number
or identification number, and the
family independence
agency
department of human services
case number.
(ii) The mother's name and race.
(iii) The child's name.
(iv) The alleged father's name and race.
(v) The collection dates and identification numbers of the
genetic testing material.
(vi) The cumulative paternity index.
(vii) The probability of paternity.
(viii) The conclusion as to whether the alleged father can or
cannot be excluded as the biological father.
(ix) The name, address, and telephone number of the contracting
laboratory.
(x) The name of the individual certifying the report.
Sec. 4. (1) An action concerning a child born out of wedlock
under this act shall be brought in the circuit court by the mother,
the
father, a child who became 18 years of age after August 15,
1984
and before June 2, 1986, or the family independence agency
department of human services as provided in this act, or a man who
could be the child's father.
(2) A man who could be the father of a child not born out of
wedlock and born after May 1, 2005 may bring an action in circuit
court if any of the following exist:
(a) The mother and the man mutually and openly acknowledge a
biological relationship between the man and the child not born out
of wedlock and the action is brought within 1 year of the date of
the birth of the child not born out of wedlock.
(b) The man who is legally presumed to be the father of the
child not born out of wedlock has failed to support the child not
born out of wedlock.
(3) The Michigan court rules for civil actions apply to all
proceedings under this act. A complaint shall be filed in the
county where the mother or child resides. If both the mother and
child reside outside of this state, then the complaint shall be
filed in the county where the putative father resides or is found.
The fact that the child was conceived or born outside of this state
is not a bar to entering a complaint against the putative father.
(4) (2)
An action to determine paternity shall not be
brought under this act if the child's father acknowledges paternity
under the acknowledgment of parentage act, 1996 PA 305, MCL
722.1001 to 722.1013, or if the child's paternity is established
under the law of another state.
(5) (3)
An Except as otherwise
provided in this act, an
action under this act may be commenced during the pregnancy of the
child's mother or at any time before the child reaches 18 years of
age. For a child who became 18 years of age after August 15, 1984
and before June 2, 1986, an action under this act may be commenced
before January 1, 1995. This subsection applies regardless of
whether the cause of action accrued before June 1, 1986 and
regardless of whether the cause of action was barred under this
subsection before June 1, 1986. A summons issued under this section
shall be in the form the court determines and shall be served in
the same manner as is provided by court rules for the service of
process in civil actions.
(6) (4)
If the county family independence agency
department of human services of the county in which the mother or
alleged father resides first determines that she or he has physical
possession of the child and is eligible for public assistance or
without
means to employ an attorney; if the
family independence
agency
department of human services
is the complainant; of
or if
the mother, alleged father, or child is receiving services under
part
D of title IV of the social security act, 42 U.S.C. USC 651
to 667
669b, then the prosecuting attorney or an attorney
employed by the county under section 1 of 1941 PA 15, MCL 49.71,
shall initiate and conduct proceedings under this act. The
prosecuting attorney shall utilize the child support formula
developed under section 19 of the friend of the court act, 1982 PA
294, MCL 552.519, as a guideline in petitioning for child support.
A complaint filed under this act shall be verified by oath or
affirmation.
(7) (5)
The party filing the complaint shall name the person
believed to be the father of the child and state in the complaint
the time and place, as near as possible, when and where the mother
became
pregnant. If the family independence agency department of
human services is the plaintiff, the required facts shall be stated
upon information and belief.
(8) (6)
Upon the filing of a complaint, the court shall
issue a summons against the named defendant. If the defendant does
not file and serve a responsive pleading as required by the court
rules, the court may enter a default judgment. Neither party is
required to testify before entry of a default judgment in a
proceeding under this act.
(9) (7)
If, after service of process, the parties fail to
consent to an order naming the man as the child's father as
provided in this act within the time permitted for a responsive
pleading,
then the family independence agency department of human
services or its designee may file and serve both the mother and the
alleged father with a notice requiring that the mother, alleged
father, and child appear for genetic paternity testing as provided
in section 6.
(10) (8)
If the mother, alleged father, or child does not
appear
for genetic paternity testing as provided in subsection (7)
(9), then the
family independence agency department of human
services or its designee may apply to the court for an order
compelling genetic paternity tests as provided in section 6 or may
seek other relief as permitted by statute or court rule.
(11) (9)
It is unnecessary in any proceedings under this act
commenced by or against a minor to have a next friend or guardian
ad litem appointed for the minor unless required by the circuit
judge. A minor may prosecute or defend any proceedings in the same
manner and with the same effect as if he or she were of legal age.
(12) (10)
If a child born out of wedlock is being supported
in whole or in part by public assistance, including medical
assistance,
the family independence agency department of human
services may file a complaint on behalf of the child in the circuit
court in the county in which the child resides. The mother or
alleged father of the child shall be made a party plaintiff and
notified of the hearing on the complaint by summons. The complaint
made
by the family independence agency department of human
services
shall be verified by the director of
the family
independence
agency department of human services, or his or her
designated
representative, or by the director of the county family
independence
agency department of human
services of the county in
which an action is brought, or the county director's designated
representative.
(13) (11)
1986 PA 107, which added this subsection, does not
affect the rights of an indigent defendant in proceedings under
this act as established by decisions of the courts of this state
before June 1, 1986.
(14) (12)
If a determination of paternity is made under this
act, the court may enter an order of filiation as provided in
section 7. Regardless of who commences an action under this act, an
order of filiation entered under this act has the same effect, is
subject to the same provisions, and is enforced in the same manner
as an order of filiation entered on complaint of the mother or
father.
Sec. 6. (1) In a proceeding under this act before trial, the
court, upon application made by or on behalf of either party, or on
its own motion, shall order that the mother, child, and alleged
father submit to blood or tissue typing determinations, which may
include, but are not limited to, determinations of red cell
antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNA identification profiling, to determine whether the
alleged father is likely to be, or is not, the father of the child.
If the court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to the
typing or DNA identification profiling, in addition to any other
remedies available, the court may do either of the following:
(a) Enter
Except for an action
commenced under section
4(2)(b), enter a default judgment at the request of the appropriate
party.
(b) If a trial is held, allow the disclosure of the fact of
the refusal unless good cause is shown for not disclosing the fact
of refusal.
(2) A blood or tissue typing or DNA identification profiling
shall be conducted by a person accredited for paternity
determinations by a nationally recognized scientific organization,
including, but not limited to, the American association of blood
banks.
(3) The court shall fix the compensation of an expert at a
reasonable amount and may direct the compensation to be paid by the
county or by any other party to the case, or by both in the
proportions and at the times the court prescribes. Before blood or
tissue typing or DNA identification profiling is conducted, the
court may order a part or all of the compensation paid in advance.
If
the family independence agency department of human services
paid for the genetic testing expenses, the court may order
repayment by the alleged father if the court declares paternity.
Documentation of the genetic testing expenses is admissible as
evidence of the amount, which evidence constitutes prima facie
evidence of the amount of those expenses without third party
foundation testimony.
(4) Subject to subsection (5), the result of blood or tissue
typing or a DNA identification profile and the summary report shall
be served on the mother and alleged father. The summary report
shall be filed with the court. Objection to the DNA identification
profile or summary report is waived unless made in writing, setting
forth the specific basis for the objection, within 14 calendar days
after service on the mother and alleged father. The court shall not
schedule a trial on the issue of paternity until after the
expiration of the 14-day period. If an objection is not filed, the
court shall admit in proceedings under this act the result of the
blood or tissue typing or the DNA identification profile and the
summary report without requiring foundation testimony or other
proof of authenticity or accuracy. If an objection is filed within
the 14-day period, on the motion of either party, the court shall
hold a hearing to determine the admissiblity of the DNA
identification profile or summary report. The objecting party has
the burden of proving by clear and convincing evidence by a
qualified person described in subsection (2) that foundation
testimony or other proof of authenticity or accuracy is necessary
for admission of the DNA identification profile or summary report.
(5) If the probability of paternity determined by the
qualified person described in subsection (2) conducting the blood
or tissue typing or DNA identification profiling is 99% or higher,
and the DNA identification profile and summary report are
admissible as provided in subsection (4), paternity is presumed. If
the results of the analysis of genetic testing material from 2 or
more persons indicate a probability of paternity greater than 99%,
the contracting laboratory shall conduct additional genetic
paternity testing until all but 1 of the putative fathers is
eliminated, unless the dispute involves 2 or more putative fathers
who have identical DNA.
(6) Upon the establishment of the presumption of paternity as
provided in subsection (5), either party may move for summary
disposition
under the court rules. this This
section does not
abrogate the right of either party to child support from the date
of birth of the child if applicable under section 7.
Sec. 7. (1) The court shall enter an order of filiation
declaring paternity and providing for the support of the child
under 1 or more of the following circumstances:
(a)
The finding of the court or the verdict determines that
the man is the father.
(b) The defendant acknowledges paternity either orally to the
court or by filing with the court a written acknowledgment of
paternity.
(c) The
Except for an action
commenced under section
4(2)(b), the defendant is served with summons and a default
judgment is entered against him or her.
(2) An order of filiation entered under subsection (1) shall
specify the sum to be paid weekly or otherwise, as prescribed in
section 5 of the support and parenting time enforcement act, 1982
PA 295, MCL 552.605, until the child reaches the age of 18. Subject
to section 5b of the support and parenting time enforcement act,
1982 PA 295, MCL 552.605b, the court may also order support for a
child after he or she reaches 18 years of age. In addition to
providing for the support of the child, the order shall also
provide for the payment of the necessary expenses incurred by or
for the mother in connection with her confinement and pregnancy and
for the funeral expenses if the child has died, as determined by
the court under section 2. A child support obligation is only
retroactive to the date that the paternity complaint was filed
unless any of the following circumstances exist:
(a) The defendant was avoiding service of process.
(b) The defendant threatened or coerced through domestic
violence or other means the complainant not to file a proceeding
under this act.
(c) The defendant otherwise delayed the imposition of a
support obligation.
(3) A judgment or order entered under this act providing for
the support of a child or payment of expenses in connection with
the mother's confinement or pregnancy is enforceable as provided in
the support and parenting time enforcement act, 1982 PA 295, MCL
552.601 to 552.650. If this act contains a specific provision
regarding the contents or enforcement of a support order that
conflicts with a provision in the support and parenting time
enforcement act, 1982 PA 295, MCL 552.601 to 552.650, this act
controls in regard to that provision.
(4) Upon entry of an order of filiation, the clerk of the
court
shall collect a fee of $35.00 as prescribed under section
2891(9)(a) of the public health code, 1978 PA 368, MCL 333.2891,
plus an additional $9.00 fee from the person against whom the order
of
filiation is entered. The clerk shall retain the $9.00 of
the
fee
and remit the $26.00 balance,
along with a written report of
the order of filiation, to the director of the department of
community health. The report shall be on a form prescribed by or in
a manner approved by the director of the department of community
health.
Regardless of whether the fee fees
required by this
section is
are collected, the clerk shall transmit and the
department of community health shall receive the report of the
order of filiation.
(5) If an order of filiation or acknowledgment of parentage is
abrogated by a later judgment or order of a court, the clerk of the
court that entered the order shall immediately communicate that
fact to the director of the department of community health on a
form prescribed by the director of the department of community
health. An order of filiation supersedes an acknowledgment of
parentage.
(6) Within the time prescribed by court rule, the party,
attorney, or agency that secures the signing of an order of
filiation shall serve a copy of the order on all parties to the
action and file proof of service with the court clerk.
Sec. 10. (1) The court has continuing jurisdiction over
proceedings brought under this act to increase or decrease the
amount fixed by the order of filiation subject to section 7, and to
provide for, change, and enforce provisions of the order relating
to the custody or support of or parenting time with the child.
(2) In addition to any other action available, a court may
determine that a child born or conceived during a marriage and born
after May 1, 2005 is a child born out of wedlock under this act if
any of the following are true:
(a) The mother, a man presumed to be the father of the child,
or a man who could be the father of the child commences an action
under this act and all of the following are true:
(i) A man who is not presumed to be the father of the child
could be the father of the child.
(ii) The mother and the man mutually and openly acknowledge a
biological relationship between the man and the child.
(iii) The mother is married and the action is commenced within 1
year of the birth of the child.
(iv) The court determines that a man who is not presumed to be
the father of the child is the father of the child.
(b) The mother, the department of human services, or a man who
is not presumed to be the father of the child commences an action
under this act and all of the following are true:
(i) A man who is not presumed to be the father of the child
could be the father of the child.
(ii) The man who is legally presumed to be the father of the
child has failed to support the child for a period in excess of 2
years or the child is under 2 years of age and the man who is
legally presumed to be the child's father lives separately and
apart from the child.
(iii) The court determines that a man who is not presumed to be
the father of the child is the father of the child.
(c) A man who could be the father of the child commences an
action under this act and all of the following are true:
(i) A man who is not presumed to be the father of the child
could be the father of the child.
(ii) The mother was not married at the time of conception and
the action is commenced within 1 year of the birth of the child.
(iii) The court determines that a man who is not presumed to be
the father of the child is the father of the child.
(3) An action under subsection (2) may be combined with an
action under section 4.
(4) A judgment entered pursuant to subsection (2) does not
relieve a man who is legally presumed to be the father of the child
from any obligation incurred before the date of the judgment.