SENATE BILL No. 436

 

 

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.