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FAMILY LAW 12: A paternity action can be filed in a divorce action regardless of child’s age.

In this case, the court is asked whether a presumed father may, in a divorce action, challenge his paternity of a child born during the course of the marriage despite the fact that he did not raise the issue within three years of the child’s birth.

Resolution of this case depends upon the proper interpretation of MCL 722.1441(2):

If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother.

MCL 722.1441(2) presents two alternatives, one where an action is filed by the presumed father within 3 years after the child’s birth and a second where the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. The three-year limitation only applies to the first option and this case involves the second option.

In this case, the parties were married in 2000. The youngest child born during the course of the marriage was born in 2011 while the parties were separated. Both parties agree that defendant is not the biological father of the child. In fact, this is supported by a DNA test that established that there is a 0% probability that defendant is the child’s biological father. Plaintiff filed for divorce in 2016, when the child was five years old. Defendant thereafter moved the trial court for a paternity determination pursuant to MCL 722.1443(1). Defendant also moved to join the person believed to be the biological father.

At Aldrich Legal Services in Plymouth, our family law and paternity lawyers work with parents throughout Wayne, Washtenaw and Oakland counties. Our lawyers have considerable knowledge and resources to help you pursue a positive resolution that protects you and your children's interests.  We can also help with DNA testing and the legitimation process.

Contact Aldrich Legal Services

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