KARI LYNN LIPNEVICIUS V GEOFFREY MICHAEL LIPNEVICIUS
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STATE OF MICHIGAN
COURT OF APPEALS
KARI LYNN LIPNEVICIUS,
UNPUBLISHED
August 26, 2010
Plaintiff-Appellee,
v
No. 289073
Genesee Circuit Court
LC No. 06-270914-DM
GEOFFREY MICHAEL LIPNEVICIUS,
Defendant-Appellant,
and
JASON BRISTOL,
Intervening Party-Appellee.
Before: JANSEN, P.J., and MURRAY and GLEICHER, JJ.
JANSEN, P.J. (concurring in part and dissenting in part).
My colleagues and I agree (1) that the trial court legally erred by allowing the biological
father, intervening party Jason Bristol (Bristol), to intervene in the divorce proceedings, (2) that
defendant was the child’s legal father prior to the trial court’s determination that he was not a
biological parent, (3) that the trial court’s determination that defendant was not a biological
parent did not amount to a “termination” of his parental rights, but rather constituted an
extinguishment of his parental rights, and (4) that defendant was entitled to invoke the so-called
“equitable parent doctrine” after the trial court’s determination that Bristol was the child’s
biological father. We also agree that that although the trial court’s ruling extinguished
defendant’s parental rights, there exist no constitutional infirmities that would require reversal in
this case. However, unlike my colleagues, I conclude that despite defendant’s entitlement to
invoke the equitable parent doctrine in this case, he would not have been able to satisfy the
standards of an equitable parent. Accordingly, instead of remanding for an evidentiary hearing
on this issue, I would affirm in full.
I
Plaintiff Kari Lynn Lipnevicius (plaintiff) married defendant in October 2000, in Grand
Blanc, Michigan. Plaintiff gave birth to two sons during the marriage: Nicholas Lipnevicius,
born 3/25/03, and Nathan Lipnevicius, born 10/14/04. The younger son, Nathan, was conceived
while plaintiff was having an extramarital affair with Bristol. Plaintiff stopped the affair with
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Bristol when she and defendant moved to Ohio in March 2004. Plaintiff subsequently moved
back to Michigan with her two children in March 2006, and filed her complaint for divorce in
October 2006. Defendant continued to live in the marital home in Ohio.
In June 2007, plaintiff filed a motion seeking, among other things, (1) a determination of
the parentage of Nathan, (2) a determination that Nathan was “not a product of the marriage,”
and (3) a determination that “defendant is not the equitable parent.” Plaintiff asserted that DNA
testing had been completed and that defendant was not Nathan’s biological father. Plaintiff also
asserted that defendant had been largely absent from Nathan’s life and had therefore not
developed a meaningful father-son relationship with Nathan. Plaintiff anticipated that if
defendant were found not to be Nathan’s biological father, he might nonetheless attempt to raise
the equitable parent doctrine. She argued that he should not be permitted to do so. Plaintiff’s
motion did not disclose the identity of Nathan’s true biological father.
Jason Bristol1 then moved to intervene in the divorce proceedings pursuant to MCR 2.209
and filed a separate motion seeking “the court’s determination that [Bristol] is the natural father
of minor child Nathan Lipnevicius.” Bristol sought to intervene solely “with regard to the issue
of the establishment of parentage [of] minor child, Nathan Lipnevicius.” Bristol represented that
he was Nathan’s true biological father. Bristol made clear that he “was not seeking to file a
separate lawsuit,” but was “merely seeking to intervene in the single issue of the determination
of the natural father of minor child Nathan Lipnevicius.”
Bristol submitted a DNA test report concluding that there was a 99.998 percent
probability that he was Nathan’s biological father. The report provided that “[b]ased on testing
results obtained from analyses of the DNA loci listed, the probability of paternity is 99.998%.”
Bristol acknowledged that, under Michigan law, it was presumed that Nathan was the child of
both plaintiff and defendant because he was born during their marriage. However, Bristol argued
that the DNA testing evidence was sufficient to rebut this presumption.
Defendant filed a response to Bristol’s motions. Defendant cited Killingbeck v
Killingbeck, 269 Mich App 132; 711 NW2d 759 (2005), for the proposition that third parties are
generally not permitted to intervene in divorce proceedings in Michigan. Defendant asserted that
because Nathan was born during the marriage, it was presumed that he was the child of both
plaintiff and defendant. Defendant observed that because he was already presumed to be
Nathan’s legal father, he had no reason to resort to the equitable parent doctrine in this case.
In August 2007, the trial court heard oral argument on Bristol’s motion to intervene.
Bristol’s attorney argued that the facts of the present case were unlike those of Killingbeck, most
specifically because “[t]he door was opened by [plaintiff]” when she filed her own earlier motion
seeking a judicial determination of Nathan’s parentage. Bristol suggested that his motion to
1
Plaintiff testified that she had known Bristol since about 1994, and had dated him in the 1990s
for approximately 2 years. Plaintiff stated that she had always kept in touch with Bristol, and
that she had met up with him again in 2003. Plaintiff testified that her extramarital affair with
Bristol began sometime in the fall of 2003.
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intervene was simply complementary to plaintiff’s own motion. Defendant’s attorney cited
Killingbeck and related cases for the proposition that a third party’s motion to intervene in
divorce proceedings should rarely be granted, and maintained that Bristol should not be
permitted to intervene or to challenge defendant’s position as Nathan’s legal father. After
hearing the arguments, the trial court entered an order granting Bristol’s motion to intervene.
An evidentiary hearing was then held during which the DNA testing results were
admitted into evidence. Counsel for defendant did not contest the DNA testing results, and
conceded that Bristol was Nathan’s biological father. On September 10, 2007, the trial court
issued an order providing that “minor child Nathan Lipnevicius is not the issue of the marriage
between Plaintiff Kari Lynn Lipnevicius and Defendant Geoffrey Michael Lipnevicius,” and that
“Jason Bristol is the natural father of minor child Nathan Lipnevicius.”
A judgment of divorce was ultimately entered in December 2007, dissolving the parties’
marriage. Bristol then filed a separate paternity action, which was assigned to the same trial
court judge. Bristol’s separate paternity action was resolved by a consent judgment, and Bristol
then moved to be dismissed from the divorce action. The circuit court granted Bristol’s motion
and dismissed him from the divorce proceedings. Bristol thereafter married plaintiff.
In January 2008, defendant filed a delayed application for leave to appeal the trial court’s
August 2007 order, arguing that Bristol had lacked standing to intervene in the divorce action.
Plaintiff moved to dismiss the delayed application as moot, arguing that Bristol had already been
dismissed from the divorce proceedings and that defendant had failed to properly preserve the
issue of his status as Nathan’s father. In June 2008, this Court dismissed defendant’s delayed
application as moot.2 This Court’s order provided in relevant part:
The motion to dismiss defendant’s delayed application for leave to
appeal . . . is GRANTED for the reason that the issue raised in the application is
moot. The natural father had standing to bring the subsequent paternity action
based on the trial court’s September 10, 2007 order finding that the child in
question was not the issue of the marriage between plaintiff and defendant.
Defendant does not challenge the substance of this order, which effectively gave
the natural father standing to bring his subsequent action under the Paternity Act.
MCL 722.714, 722.711(a); Barnes v Jeudevine, 475 Mich 696, 703; 718 NW2d
311 (2006); In re KH, 469 Mich 621, 634-635; 677 NW2d 800 (2004). Whether
the trial court erred by allowing the natural father to intervene in the divorce
action is irrelevant to the outcome. The delayed application for leave to appeal is
DISMISSED.
This Court’s dismissal of defendant’s delayed application was not appealed to the Supreme
Court.
2
Lipnevicius v Lipnevicius, unpublished order of the Court of Appeals, entered June 20, 2008
(Docket No. 282990).
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Meanwhile, in October 2007, defendant had filed a motion for summary disposition in
the trial court. In the motion for summary disposition, defendant argued that he was Nathan’s
equitable parent, even though Bristol was Nathan’s true biological father. Defendant asserted
that he “clearly satisfied the criteria” for being adjudicated an equitable parent under Atkinson v
Atkinson, 160 Mich App 601; 408 NW2d 516 (1987). Defendant further contended that, as
Nathan’s equitable father, he was “endowed with both the rights and responsibilities of a
natural/legal parent.”
Plaintiff and Bristol—Bristol had not yet been dismissed form the divorce case at this
time—opposed defendant’s motion for summary disposition, arguing that defendant was not an
equitable parent and that he had stipulated to the admission of the DNA testing results. They
also pointed out that the circuit court had already ruled on September 10, 2007, that Nathan was
“not the issue of the marriage” and that “Bristol is the natural father of minor child Nathan
Lipnevicius.”
In December 2007, the trial court denied defendant’s motion for summary disposition.
The trial court found its previous order of September 10, 2007, to be dispositive on the issue of
Nathan’s legal parentage. The court noted that a child born during a marriage is presumed to be
the issue of that marriage, but that this presumption of legitimacy can be rebutted by clear and
convincing evidence of paternity. The court also noted that it was authorized to determine that
Nathan was not the issue of the marriage, and stated that “[o]nce this determination is made, a
party claiming to be the equitable parent cannot then make claims challenging whether the child
was, in fact, born out of wedlock.” The trial court concluded:
[T]here has been a conclusive legal proceeding wherein this court found
by clear and convincing evidence that Nathan was not the product of the
marriage—hence he was born out of wedlock. If this court were to now confer
the status of equitable parent on the defendant it would undermine this court’s
prior order and determination that Nathan was not an issue of the marriage, which
is impermissible pursuant to Coble v Green, 271 Mich App 382; 722 NW2d 898
(2006).
After the plaintiff challenged the presumption of legitimacy, this court
determined by clear and convincing evidence that third party Bristol was the
natural father of Nathan—and that Nathan was not a product of the marriage; the
arguments now made by the defendant seeking status as an equitable parent are
moot pursuant to the holding in Coble. Accordingly, the order entered by this
court on September 12, 2007, remains in effect. And the defendant’s motion for
summary disposition must be denied because the documentary evidence presented
in support thereof cannot yield a different result.
In November 2008, defendant filed a delayed application for leave to appeal the trial
court’s December 2007 order. This Court initially denied defendant’s delayed application for
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leave to appeal.3 But in Lipnevicius v Lipnevicius, 485 Mich 872 (2009), our Supreme Court
remanded the matter for consideration as on leave granted, setting forth seven specific questions
for this Court’s consideration:
[I]n lieu of granting leave to appeal, we REMAND this case to the Court
of Appeals for consideration as on leave granted. The court should consider: (a)
whether the trial court legally erred in allowing the biological father to intervene
in the divorce proceedings; (b) whether the defendant father was the child’s legal
father prior to the trial court’s determination that the defendant father was not a
biological parent; (c) whether the trial court’s determination that the defendant
father was not the child’s biological parent amounted to termination of his
parental rights; (d) if the trial court’s determination did amount to a termination of
the defendant father’s parental rights, whether any constitutional implications
exist; cf. Santosky v Kramer, 455 US 745 (1982); (e) whether the defendant father
was entitled to invoke the equitable parent doctrine after the court determined that
another man was the biological father; (f) whether the defendant father’s
entitlement to invoke the equitable parent doctrine is in any way affected by the
fact that the biological father is apparently willing to undertake all parental
responsibilities with regard to the child; and (g) whether, if the defendant father is
entitled to invoke the equitable parent doctrine, he has satisfied the standards of
an equitable parent.
II
This Court reviews for an abuse of discretion the trial court’s decision on a motion to
intervene. Auto-Owners Ins Co v Keizer-Morris, Inc, 284 Mich App 610, 612; 773 NW2d 267
(2009). An abuse of discretion occurs when the trial court’s decision falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006). Whether defendant was Nathan’s legal father prior to the trial court’s
determination that defendant was not a biological parent, whether the trial court’s determination
in this regard amounted to a termination of defendant’s parental rights, and whether any
constitutional implications exist in this case are all questions of law. This Court reviews de novo
questions of law, Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006), including
questions of constitutional law, Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d
453 (2008). Lastly, whether a party may assert parental rights under the equitable parent
doctrine is a question that this Court reviews de novo on appeal. Killingbeck, 269 Mich App at
141.
III
A
3
Lipnevicius v Lipnevicius, unpublished order of the Court of Appeals, entered January 21, 2009
(Docket No. 289073).
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I first conclude that although the trial court legally erred by allowing Bristol to intervene
in the divorce proceedings, this error was plainly harmless in light of plaintiff’s nearly identical
motion seeking a determination that Bristol was Nathan’s biological father. MCR 2.209
describes various instances in which a party may intervene by right, and other instances in which
a party may intervene at the trial court’s discretion. But as this Court has previously observed,
“[d]omestic relations actions are strictly statutory. The only parties to a divorce action are the
two people seeking dissolution of their marriage. Third-party intervention in divorce actions is
permitted in extremely limited circumstances . . . .” Killingbeck, 269 Mich App at 140 n 1; see
also Yedinak v Yedinak, 383 Mich 409, 413; 175 NW2d 706 (1970) (noting that a divorce court’s
jurisdiction is limited “to determin[ing] the rights and obligations between the husband and wife,
to the exclusion of third parties”). Indeed, the general rule is that “third parties can be joined in
[a] divorce action only if they have conspired with one spouse to defraud the other spouse of a
property interest.” Estes v Titus, 481 Mich 573, 583; 751 NW2d 493 (2008). I recognize that
Bristol’s motion to intervene was quite limited in scope, seeking only “to intervene in the single
issue of the determination of the natural father of minor child Nathan Lipnevicius.” Nonetheless,
as our precedent makes clear, the “sole recourse” for a nonparty to the divorce proceedings who
seeks to establish paternity is by way of a paternity action, and not through the divorce action
itself. Killingbeck, 269 Mich App at 140 n 1. Accordingly, I believe that the trial court legally
erred by allowing Bristol to intervene in the parties’ divorce action for the purpose of
establishing the paternity of Nathan.
This is not to say, however, that the trial court was wholly without authority to determine
the matter of paternity within the confines of the divorce action. Plaintiff, herself, had filed a
nearly identical motion seeking a determination that Bristol was Nathan’s true biological father.
And as the text of the trial court’s order makes clear, plaintiff’s motion concerning the issue of
paternity was decided concurrently with Bristol’s motion. Even though Bristol should not have
been permitted to intervene and to raise the matter of paternity by way of his own motion,
plaintiff, as a party to the divorce, did have standing to raise the issue of Nathan’s parentage.
See York v Morofsky, 225 Mich App 333, 335; 571 NW2d 524 (1997). In a divorce proceeding,
a wife may offer evidence that her husband is not the biological father of a child, even though the
child was born during the marriage and the husband has treated the child as his own. Atkinson v
Atkinson, 160 Mich App 601, 605-606; 408 NW2d 516 (1987). As this Court has held, “it is
now well-established that in divorce actions the court may determine whether the husband is the
father of the wife’s child.” Id. at 606. Accordingly, despite the trial court’s error in permitting
Bristol to intervene and raise the issue of Nathan’s parentage, I conclude that the issue of
Nathan’s parentage was still properly before the court in the form of plaintiff’s own motion. The
trial court properly entertained plaintiff’s separate motion and decided, on the basis of the
undisputed DNA test results, that defendant was not Nathan’s biological father. Therefore, the
trial court’s error in allowing Bristol to intervene and raise the issue of paternity was plainly
harmless, and did not affect the outcome of the proceedings. It is well settled that this Court will
not reverse on the basis of harmless error. Guerrero v Smith, 280 Mich App 647, 656; 761
NW2d 723 (2008).
B
I also conclude that defendant was, indeed, Nathan’s legal father prior to the trial court’s
determination that defendant was not a biological parent. Under Michigan law, there is a
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rebuttable presumption that a child born or conceived during a marriage is the issue of that
marriage. In re KH, 469 Mich 621, 624-625; 677 NW2d 800 (2004); see also MCR
3.903(A)(7)(a), and Aichele v Hodge, 259 Mich App 146, 158-159; 673 NW2d 452 (2003). This
presumption “‘is deeply rooted in our statutes and case law,’” and “can be overcome only by a
showing of clear and convincing evidence.” Barnes v Jeudevine, 475 Mich 696, 703; 718 NW2d
311 (2006), quoting In re KH, 469 Mich at 634. It is undisputed that plaintiff gave birth to
Nathan while plaintiff was still married to defendant. Thus, prior to the trial court’s
determination that defendant was not Nathan’s biological father, defendant was legally presumed
to be the child’s father. See In re KH, 469 Mich at 624-625. Defendant did not lose his status as
Nathan’s legal father until the trial court subsequently decided plaintiff’s motion, determining by
clear and convincing evidence4 that Bristol was the child’s true biological father.
C
I next conclude that the trial court’s determination that defendant was not Nathan’s
biological father did not amount to a “termination” of his parental rights as that term is used in
the Juvenile Code, MCL 712A.1 et seq. Instead, I conclude that defendant’s presumed parental
rights in the child were extinguished once the trial court entered the judgment of divorce,
determining that defendant was not the father of the child and that the child was not the issue of
the marriage. Although it is arguable that the difference between “termination” and
“extinguishment” is merely a matter of semantics, the former term carries significant legal
implications that are inapplicable to the present situation.
There is no doubt that none of the grounds for terminating parental rights set forth in the
Juvenile Code is present—or even alleged to be present—in this case. See MCL 712A.19b(3).
This is not an “abuse and neglect” case filed under the Juvenile Code by the Department of
Human Services, and none of the procedures set out in the Juvenile Code was utilized here.
Rather, this was a divorce case in which the issue of paternity was timely raised by plaintiff, and
in which the court properly resolved to “settle with finality a controversy regarding the child’s
legitimacy.” Barnes, 475 Mich at 704. In addressing the issues presented, the trial court found
that the strong and historic presumption of legitimacy established when a child is born during the
marriage had been overcome by clear and convincing evidence. Id. at 703. Any parental rights
bestowed upon defendant as a result of this presumption were duly extinguished by the court’s
findings in the judgment of divorce that defendant was not the biological father of the child and
that the child was not the issue of the marriage. I conclude that once the judgment of divorce
was entered to this effect, defendant at that point in time no longer had any legally enforceable
rights in the minor child.5 Any such legally enforceable rights that he was previously presumed
to have were extinguished.
4
I note that the undisputed DNA test results in this case, indicating a 99.998 percent probability
that Bristol was Nathan’s biological father, certainly constituted “clear and convincing evidence”
sufficient to rebut the presumption that defendant was the child’s father. See Barnes, 475 Mich
at 703.
5
Of course, this statement that defendant “no longer had any legally enforceable rights in the
(continued…)
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D
Nor do I perceive any constitutional infirmities that would require reversal of the trial
court’s actions. It is true that natural parents enjoy a fundamental liberty interest in the care,
custody, and management of their children. Santosky v Kramer, 455 US 745, 753; 102 S Ct
1388; 71 L Ed 2d 599 (1982); see also In re Rood, 483 Mich 73, 76; 763 NW2d 587 (2009). It is
equally true that Michigan law, “like nature itself, makes no provision for dual fatherhood.” See
Michael H v Gerald D, 491 US 110, 118; 109 S Ct 2333; 105 L Ed 2d 91 (1989) (opinion of
SCALIA, J.). It cannot seriously be disputed that, until the presumption of paternity was rebutted,
the fundamental liberty interest in the care, custody, and management of Nathan belonged to
defendant—who was presumed to be Nathan’s natural father because he was married to plaintiff
at the time of conception and birth. See In re KH, 469 Mich at 624-625; MCR 3.903(A)(7)(a).
However, once plaintiff introduced clear and convincing evidence in the divorce court to rebut
the presumption of legitimacy, as she was entitled to do under Michigan law, Atkinson, 160 Mich
App at 605-606, and once the trial court entered its order providing that Nathan “is not the issue
of the marriage,” Nathan had no “father” as defined in MCR 3.903(A)(7), In re KH, 469 Mich at
637 (2004) (stating that “the trial court did not make a finding that the presumption of legitimacy
was rebutted by the parents,” but that “[i]f such a finding had been made, the children would
have no “father”). At this point, defendant’s rights as a father ceased to exist and Jason Bristol
presumably could have been identified as a putative father under MCR 3.903(A)(24) and MCR
3.921(D). In re KH, 469 Mich at 637. Because defendant was no longer a “parent” after the
presumption of legitimacy was rebutted, he necessarily possessed no further fundamental liberty
interest in Nathan’s care and custody at that time. Santosky, 455 US at 753. Accordingly, I find
no constitutional error in this case.
E
I next consider whether defendant was entitled to assert the equitable parent doctrine after
the trial court determined that he was not the child’s biological father. Like my colleagues, I
conclude that he was. However, unlike my colleagues, I am convinced that defendant is unable
to satisfy the requirements of an equitable parent in this case.
1
The facts of the present case are similar to those of Atkinson. In Atkinson, 160 Mich App
at 605-606, the defendant-wife gave birth to a child during her marriage to the plaintiff-husband.
Thereafter, during subsequent divorce proceedings, the defendant-wife wished to introduce
evidence that the child was not the plaintiff-husband’s biological issue. This Court ruled that the
defendant-wife was entitled to introduce such evidence. Id. However, this Court also ruled that
the plaintiff-husband was entitled to invoke the “equitable parent” doctrine, stating:
[A] husband who is not the biological father of a child born or conceived
during the marriage may be considered the natural father of that child where (1)
(…continued)
minor child” assumes that defendant was neither an equitable parent nor an individual with thirdparty custody rights in a child custody dispute.
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the husband and the child mutually acknowledge a relationship as father and
child, or the mother of the child has cooperated in the development of such a
relationship over a period of time prior to the filing of the complaint for divorce,
(2) the husband desires to have the rights afforded to a parent, and (3) the husband
is willing to take on the responsibility of paying child support. [Id. at 608-609.]
The Atkinson Court went on to hold that the plaintiff-husband qualified as an “equitable parent”
under the circumstances of that case, and remanded the matter to allow the trial court to
reevaluate the plaintiff-husband’s requests for custody and visitation. Id. at 609.
Pursuant to the reasoning of Atkinson,6 I conclude that defendant was permitted to invoke
the equitable parent doctrine following the trial court’s determination that he was not the child’s
biological father. The trial court erred by denying defendant’s motion for summary disposition
and by declining to allow him to invoke the equitable parent doctrine.
2
I perceive no reason why defendant’s entitlement to invoke the equitable parent doctrine
should have been affected by the fact that Bristol was willing to undertake all parental
responsibilities with regard to the child. It does not appear that a biological father’s willingness
or ability to provide for the child has ever been considered as an important factor in this Court’s
equitable-parent jurisprudence. I conclude that defendant’s entitlement to invoke the equitable
parent doctrine in this case was not dependent on, or affected by, Bristol’s willingness to care for
the child.
3
However, even though the trial court erred by declining to allow defendant to invoke the
equitable parent doctrine in this case, I conclude that defendant would not have been able to
satisfy the requirements of an equitable parent with respect to Nathan. For this reason, I would
affirm the trial court’s decision in full.
As this Court stated in Atkinson, 160 Mich App at 608-609:
6
This Court’s decision in Atkinson constitutes binding precedent. MCR 7.215(C)(2). Of course,
because Atkinson was decided prior to November 1, 1990, my colleagues and I would be
perfectly free to disagree with its holding and reach a contrary result in the case at bar. MCR
7.215(J)(1). However, the equitable parent doctrine has been referenced, if not expressly
reaffirmed, in several post-1990 cases. See, e.g., Van v Zahorik, 460 Mich 320, 330-334; 597
NW2d 15 (1999); Coble v Green, 271 Mich App 382, 388; 722 NW2d 898 (2006); York, 225
Mich App at 335-339. I therefore decline to deviate from the holding and rationale of Atkinson
in this case. Although I agree with my colleagues that the equitable parent doctrine is seemingly
inconsistent with Michigan’s comprehensive statutory scheme governing child custody matters, I
would leave for the Supreme Court or the Legislature the question whether the equitable parent
doctrine should be redefined or abolished.
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[A] husband who is not the biological father of a child born or conceived
during the marriage may be considered the natural father of that child where (1)
the husband and the child mutually acknowledge a relationship as father and
child, or the mother of the child has cooperated in the development of such a
relationship over a period of time prior to the filing of the complaint for divorce,
(2) the husband desires to have the rights afforded to a parent, and (3) the husband
is willing to take on the responsibility of paying child support. We hold that the
husband may be considered the “equitable parent” under these circumstances and
remand this case in order to allow the circuit court to reevaluate custody and
visitation, treating plaintiff as a natural parent . . . .
It is clear that a man must satisfy all three of these requirements in order to be considered an
equitable parent under the reasoning of Atkinson.
In the instant case, while defendant may desire to be a parent, and is apparently willing to
support Nathan, the record indicates that he cannot meet the first criterion enumerated in
Atkinson. Nathan was born in October 2004. Plaintiff filed her complaint for divorce in October
2006, and had moved the children out of the marital home in Ohio some time before that.
During the brief time that Nathan lived with defendant, defendant worked a minimum of 80
hours a week, traveled frequently on business, and apparently spent very little time with Nathan
or his older brother. In light of these circumstances and Nathan’s young age at the time he left
defendant’s home, I simply cannot conclude that Nathan developed a real father-child
relationship with defendant or that he would acknowledge such a relationship with defendant at
this time. Nor does it appear that plaintiff cooperated in the development of such a relationship
over a period of time before filing for divorce.
It is undisputed that defendant was largely absent during Nathan’s early life, and
defendant has had only minimal contact with Nathan since that time. I find no evidence in the
record to suggest that Nathan has looked to defendant for parental comfort or that Nathan
considers defendant to be his father. Accordingly, I conclude that even though defendant should
have been permitted to invoke the equitable parent doctrine in this case, he would not have been
able to satisfy the requirements of an equitable parent. See id. at 608-609.
IV
In sum, my colleagues and I agree that the trial court legally erred by allowing Bristol to
intervene in the divorce proceedings, that defendant was the child’s legal father prior to the trial
court’s determination that he was not a biological parent, that the trial court’s determination that
defendant was not a biological parent constituted an extinguishment of his parental rights, and
that defendant was entitled to invoke the equitable parent doctrine in the case at bar. We also
agree that that there exist no constitutional infirmities that would require reversal in this case.
However, unlike my colleagues, I would affirm in full because I conclude that defendant cannot
satisfy the standards of an equitable parent and I do not believe that any further factual
development of this issue is necessary.
/s/ Kathleen Jansen
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