Plaintiff conceived a minor child, CF, while she was married to her now-deceased husband. Her husband died three months after CF was born in September 2002. On April 11, 2006, plaintiff filed a complaint for paternity, alleging that she was begotten with child by defendant on or about January 2002. Plaintiff did not allege that CF was “born out of wedlock.” Plaintiff alleged that she gave birth to CF on September 10, 2002 and that defendant was the child’s biological father. Defendant denied that he was the child’s biological father, and no genetic blood testing was ever conducted.
The lower court conducted a trial on October 16, 2006 and thereafter entered an order of filiation declaring defendant to be the father of the child. Over the course of several years after entry of the order of filiation, defendant was delinquent in paying child support, resulting in the issuance of numerous orders to show cause and bench warrants for defendant’s arrest.
In 2010 and 2011, defendant filed motions in the lower court, arguing that the order of filiation should be set aside and the resulting child support obligation should be canceled because he learned that plaintiff had been collecting Social Security survivor’s benefits for the child, as the child of her deceased husband to whom plaintiff was legally married on the date when she conceived the child.
On December 10, 2015, the FOC referee conducted a review of the relevant facts and recommended that the order of filiation be set aside and that the case be dismissed for lack of subject-matter jurisdiction. The referee explained as follows: Michigan law is clear that a minor child cannot have two legal fathers. Pursuant to the action filed by the Plaintiff, the Paternity Act . . . provides this Court with subject matter jurisdiction to determine the parentage of a child, ONLY if a child is “born out of wedlock”. Since Plaintiff/Mother was married when the minor child was conceived, the child was not born “out of wedlock”.
Plaintiff objected to the referee’s recommendation, and after a de novo review of the issues, the circuit court issued an order setting aside the order of filiation and dismissing the paternity complaint for lack of subject-matter jurisdiction because plaintiff was married to a man other than defendant at the time the child was conceived and her deceased husband had not been excluded as the child’s legal father.
Do Not Try to Solve a Paternity Dispute Alone
Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties.
If you and your child's other parent are not married and cannot agree on the terms of your custody and visitation arrangements, you will need strong representation to preserve your right to remain involved in your child's life.