IN RE HERRON/LAGRONE/JEFFERSON MINORS
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Michigan Supreme Court
Lansing, Michigan 48909
Opinion
Chief Justice
Maura D. Corrigan
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 14, 2004
In re: KH, KL, KL, AND KJ,
MINORS.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 122666
TINA JEFFERSON, RICHARD JEFFERSON,
FREDERICK HERRON, AND LARRY LAGRONE,
Respondents-Appellants.
____________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal in this case to determine
whether
our
biological
1
court
father
rules,
to
MCR
request
5.900
a
et
seq.,1
paternity
allow
a
determination
Effective May 1, 2003, MCR 5.900 et seq. were amended
and relocated to MCR 3.900 et seq. While the former court
rules were in effect during the pendency of this case, the
subsequent amendments do not alter the analysis or outcome
of this case.
during a child protective proceeding in which the subject
children have a legal father.
We hold that our court rules
do not permit a biological father to participate in a child
protective proceeding where a legal father exists.
Indeed,
where a legal father exists, a biological father cannot
properly be considered even a putative father.
Under
Michigan
law,
a
presumption
of
legitimacy
attaches to a child born or conceived during an intact
marriage.
Unless and until the presumption of legitimacy
is rebutted in a prior proceeding, an alleged biological
father cannot seek a determination that he is the natural
father of the child pursuant to MCR 5.921(D), and cannot
establish a legal paternal relationship in accordance with
MCR 5.903(A)(4).
The Family Independence Agency erred by
naming multiple men in the termination petition where a
legal father existed.
In this case, the alleged biological father was not a
proper party to the proceedings and could not request a
determination
that
he
was
the
biological
father
of
the
children because the children already had a legal father at
the time of the proceedings.
However, the record contains
evidence that could support a finding that both the mother
and the legal father, during the course of the proceedings,
rebutted the presumption that the children were the issue
of the marriage.
The trial court did not make a finding
2
that
the
presumption
parents.
of
legitimacy
was
rebutted
by
the
Accordingly, this case is remanded to the trial
court for such a determination.
If the court finds that
the presumption of legitimacy was rebutted by the parents
by clear and convincing evidence that the children are not
the
issue
of
the
marriage,
the
court
may
take
further
action in accordance with MCR 5.921(D).
I. Facts and Procedural History
On April 25, 2002, the Oakland Circuit Court, Family
Division, authorized a petition requesting the termination
of the parental rights of Tina and Richard Jefferson.
The
petition also named Larry Lagrone and Frederick Herron as
the “putative” fathers of the children.2
prosecution
at
a
pretrial
hearing,
On motion of the
the
petition
was
subsequently amended by the Family Independence Agency to
request that the court terminate the parental rights of
fathers
Jefferson,
Herron,
Lagrone,
“and/or
father
John
Doe.”
At a bench trial conducted on July 8, 2002, the family
division
referee
took
testimony
establishing
that
Tina
Jefferson was legally married to Richard Jefferson during
each child’s conception and birth, as well as during the
pendency of the child protective proceedings.
2
The referee
Lagrone was named as the putative father of KL, KL,
and KJ. Herron was named as the putative father of KH.
3
noted that because Richard Jefferson was the legal father
of
the
children,
there
was
“no
reason”
for
Lagrone
or
Herron to participate in the proceedings “unless there’s a
challenge otherwise.”
Lagrone’s counsel asked the referee to make a finding
that Richard Jefferson was not the “natural father” of the
children
so
that
Lagrone
could
establish
“a
legal
relationship.” Tina Richardson testified that Herron was
the biological father of KH, and that Larry Lagrone was the
biological father of KL, KL, and KJ.
Through counsel,
Richard Jefferson indicated that he was not the biological
father of the children named in the petition and did not
wish to participate further in the proceedings.
According
to the Family Independence Agency, DNA (deoxyribonucleic
acid) testing established that Lagrone was the biological
father of KL, KL, and KJ.
the
referee
determined
On the basis of this evidence,
that
Lagrone
was
the
biological
father of the three children.
Lagrone filed a motion in the circuit court seeking a
ruling
that
Jefferson
was
not
the
father
children within the meaning of MCR 5.903.
of
the
three
The children’s
mother argued that a putative father did not have standing
to establish paternity in a neglect proceeding.
Relying on
In re Montgomery,3 the circuit judge held that Lagrone was
3
185 Mich App 341; 460 NW2d 610 (1990).
4
the biological father of the children and had standing to
seek paternity.
It did not make an express finding that
the children were not the issue of the marriage. Lagrone’s
motion
to
circuit
establish
judge
paternity
indicated
that
was
it
granted,
was
although
“troubled”
by
the
the
result.
Relying on the circuit court ruling, the referee at
the
termination
legal
father
of
hearing
three
indicated
children.
that
The
Lagrone
referee
was
the
ordered
Herron, the alleged biological father of KH, to establish
paternity within fourteen days or “lose all rights” to the
child.
The lawyer-guardian ad litem sought leave to file an
interlocutory appeal in the Court of Appeals, which was
denied. After the case was held in abeyance for In re CAW,4
we granted leave to appeal.5
II. Standard of Review
On appeal, the guardian ad litem argues that the trial
court erred by granting the biological father’s motion to
establish paternity because he lacked standing, either in
the context of a child protective proceeding or under the
Paternity Act, MCL 722.711 et seq.
Whether a party has
4
469 Mich 192; 665 NW2d 475 (2003).
5
469 Mich 896 (2003).
5
standing to bring an action involves a question of law that
is reviewed de novo.6
When called on to construe a court rule, this Court
applies the legal principles that govern the construction
and application of statutes.7
Accordingly, we begin with
the plain language of the court rule. When that language is
unambiguous, we must enforce the meaning expressed, without
further
judicial
construction
interpretation.8
or
Similarly, common words must be understood to have their
everyday, plain meaning.9
III. Analysis
a. The Court Rules
The juvenile code, MCL 712A.1 et seq., delineates the
scope
and
jurisdiction
proceedings,
including
of
child
the
protective
does not address paternity issues.
MCR
3.901
juvenile
et
seq.,
were
proceedings.
the
The
court
juvenile
proceedings,
but
MCR 5.901 et seq., now
court
scope
in
rules
of
that
those
governed
rules,
as
articulated in MCR 5.901(A), was to “govern practice and
6
Lee v Macomb Co Bd of Comm'rs, 464 Mich 726, 734; 629
NW2d 900 (2001).
7
CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich 549,
553; 640 NW2d 256 (2002).
8
Veenstra v Washtenaw Country Club, 466 Mich 155, 160;
645 NW2d 643 (2002).
9
See MCL 8.3a; see also Perez v Keeler Brass Co, 461
Mich 602, 609; 608 NW2d 45 (2000).
6
procedure
.
.
.
in
all
cases
filed
under
the
Juvenile
Code.”
MCR 5.921, now MCR 3.921, described the parties who
were entitled to notice in various juvenile proceedings.
MCR 5.921(D), now MCR 3.921(C), provided a mechanism for
identifying
and
providing
notice
to
a
putative
father.
That rule stated that “[i]f at any time during the pendency
of a proceeding, the court determines that the minor has no
father as defined in MCR 5.903(A)(4),[10] the court may, in
10
Father
was
defined
in
our
court
rules
at
5.903(A)(4) as:
(a) a man married to the mother at any time
from a minor’s conception to the minor’s birth
unless the minor is determined to be a child born
out of wedlock;
(b)
a man who legally adopts the minor;
(c) a man who was named on a Michigan birth
certificate . . . or
(d) a man whose paternity is established in
one of the following ways . . . :
(i) the man and the mother of the minor
acknowledge that he is the minor’s father by
completing
and
filing
an
acknowledgment
of
paternity. . . .
(ii) the man and the mother file a joint
written
request
for
a
correction
of
the
certificate of birth pertaining to the minor that
results in issuance of a substituted certificate
recording the birth [.]
(iii) the man acknowledges that he is the
minor’s father by completing and
filing
an
acknowledgment of paternity, without the mother
joining
in
the
acknowledgment
if
she
is
7
MCR
its discretion” take action to determine the identity of
the minor’s natural father.11
disqualified from signing
the acknowledgement
by reason of mental incapacity (or) death. . . .
(iv) a man who by order of filiation or by
judgment of paternity is determined judicially to
be the father of the minor.
11
MCR 5.921(D) provided in pertinent part:
(1) The court may take initial testimony on
the tentative identity and address of the natural
father. If the court finds probable cause to
believe that an identifiable person is the
natural father of the minor, the court shall
direct that notice be served on that person
. . . .
(2) After notice to the putative father,
. . . the court may conduct a hearing and
determine that:
* * *
(b)
a
preponderance
of
the
evidence
establishes that the putative father is the
natural father of the minor and justice requires
that he be allowed 14 days to establish his
relationship according to MCR 5.903(A)(4)[now MCR
3.903 (A)(7)] . . . .
(3) The court may find that the natural
father waives all rights to further notice,
including the right to notice of termination of
parental rights, and the right to legal counsel
if
(a) he fails to appear after proper notice,
or
(b) he appears, but fails to establish
paternity within the time set by the court.
8
The court rule clearly permitted a putative father to
be identified and given notice of court hearings only where
the minor had “no father.” MCR 5.921(D), now MCR 3.921(C).
Therefore,
if
a
father
already
existed
under
MCR
5.903(A)(4), a putative father could not be identified as a
respondent or otherwise given notice.12
It is uncontested that Tina and Richard Jefferson were
legally married at the time of each minor’s conception and
birth.
Our court rules contemplated that only one man be
identified as a respondent in a termination proceeding.13
Pursuant to MCR 5.903(A)(4)(a), Richard Jefferson is the
children’s father.14
No other man may be identified as a
12
The amended court rules include MCR 3.903(A)(23),
defining putative father as “a man who is alleged to be the
biological father of a child who has no father as defined
in MCR 3.903(A)(7).”
13
In termination proceedings, “respondent” included
“the father of the child as defined by MCR 5.903(A)(4) [now
MCR 3.903(A)(7)].” MCR 5.974(B)(2). (Emphasis added.) The
rule contemplated only one man, not a series of identified
and unidentified men. See also amended court rule MCR
3.977(B)(2).
14
In this case, the Family Independence Agency failed
to follow the plain language of the court rule when it
named multiple men as respondents in the termination
petition where the minor children already had a father. At
oral argument, the parties indicated that the Family
Independence Agency routinely names multiple men on
termination petitions, including “John Doe,” even where a
legal father exists.
We reiterate that there is no basis
in the court rules for naming serial men on a termination
petition when a legal father exists.
9
putative
father
unless
the
minors
are
determined
to
be
“born out of wedlock.”15
The term “child born out of wedlock” was defined at
MCR 5.903(A)(1) as a child “conceived and born to a woman
who is unmarried from the conception to the birth of the
child,
or
a
child
determined
by
judicial
notice
or
otherwise to have been conceived or born during a marriage
but who is not the issue of that marriage.”16 Respondent
Lagrone
maintains
that
the
children
were
judicially
determined to be “born out of wedlock” when the referee
determined that Lagrone was the biological father of the
three children.
15
It is worth noting that where a child had no father,
and a putative father was properly identified, the putative
father had to establish a legal relationship with the child
in order to be named as a respondent in the termination
petition. See MCR 5.974(B)(2), now MCR 3.977(B)(2). If a
putative father failed to establish paternity within the
time set by the court, he could be deemed to have waived
all rights to further notice and any right to counsel. MCR
5.921(D)(3), now MCR 3.921(C)(3).
16
Under the amended court rules, the definition of
“child born out of wedlock” was removed and incorporated
into
the
amended
definition
of
“father.”
See
MCR
3.903(A)(7)(a)(“Father” means “[a] man married to the
mother at any time from a minor’s conception to the minor’s
birth, unless a court has determined, after notice and a
hearing, that the minor was conceived or born during the
marriage, but is not the issue of the marriage[.]”).
10
b. The Paternity Act
In
this
case,
respondent
Lagrone
sought
a
judicial determination that his biological relationship to
three of the children named in the petition was sufficient
to
rebut
the
presumption
of
legitimacy
and
establish
Lagrone’s status as the legal father of the children.
In
essence, Lagrone sought to establish legal paternity in a
child
protective
legislatively
proceeding
provided
rather
mechanism
than
designed
through
to
govern
the
the
establishment of paternity claims—the Paternity Act.
Standing to pursue relief under the Paternity Act, MCL
722.711 et seq., is conferred on the mother or father of a
child born out of wedlock, or on the Family Independence
Agency
in
limited
circumstances.17
Under
the
statute,
a
“child born out of wedlock” is defined as “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 child that the
court has determined to be a child born or conceived during
a marriage but not the issue of that marriage.”18
In
Girard
v
Wagenmaker,19
this
Court
held
that
a
biological father had no standing to establish paternity of
a child born during an intact marriage “without a prior
17
MCL 722.714(1),(4).
18
MCL 722.711(a).
19
437 Mich 231; 470 NW2d 372 (1991).
11
determination
father.”20
that
the
mother’s
husband
is
not
the
A “prior determination” was required because the
Legislature
used
the
present
perfect
tense
of
the
verb
“determine,” which was indicative of a past action rather
than a contemporaneous action. Additionally, requiring a
prior
determination
preference
for
comported
respecting
the
“with
the
presumed
traditional
legitimacy
of
a
child born during a marriage.”21
Clearly, if respondent Lagrone had sought to establish
paternity under the Paternity Act, his claim would have
failed for lack of standing because, at the time he sought
to
establish
paternity,
there
was
no
prior
adjudication
that the children were born out of wedlock.
In In re CAW, the majority opinion did not reach the
question presented in this case, because “no finding was
ever made by the court that [the child] was not the issue
of
marriage.”22
the
However,
Justice
WEAVER’S
concurring
opinion did address the issue, reconciling the court rules
with
the
analysis.
Paternity
Act.
Specifically,
We
agree
Justice
20
with
WEAVER
and
noted
adopt
that
this
the
Id. at 235. In Girard, the plaintiff claimed to be
the biological father of a child conceived and born during
the marriage of the defendant and her husband. Defendant’s
husband “continuously accepted and supported the child as
his own.” Id.
21
Id. at 246.
22
In re CAW, supra at 199.
12
definition of “child born out of wedlock” in the court
rules varies from that in the Paternity Act “only in its
additional provision that a child may be determined to be
born out of wedlock ‘by judicial notice or otherwise’ and
in its use of the past tense of the verb ‘to determine,’
rather
than
the
present
perfect
tense
of
that
verb.”23
Accordingly, we conclude, consistently with the language of
the Paternity Act, that a determination that a child is
born out of wedlock must be made by the court before a
biological father may be identified in a child protective
proceeding.
Under either version of the court rule,
MCR 5.921(D)
or MCR 3.921(C), a prior out-of-wedlock determination does
not
confer
any
type
of
standing
on
a
putative
father.
Rather, the rules give the trial court the discretion to
provide notice to a putative father, and permit him to
establish
that
he
is
the
biological
father
by
a
preponderance of the evidence. Once proved, the biological
father is provided fourteen days to establish a legally
recognized paternal relationship.
Nothing in the prior or amended court rules permits a
paternity determination to be made in the midst of a child
protective proceeding.
Rather, once a putative father is
identified in accordance with the court rules, the impetus
23
469 Mich 202-203.
13
is clearly placed on the putative father to secure his
legal relationship with the child as provided by law.
the
legal
relationship
is
not
established,
a
If
biological
father may not be named as a respondent on a termination
petition,
the
genetic
relationship
notwithstanding.
MCR
5.974(B)(2).
c. The Presumption of Legitimacy
The presumption that children born or conceived during
a marriage are the issue of that marriage is deeply rooted
in
our
statutes
and
case
law.24
This
presumption
of
legitimacy, most recently reaffirmed in In re CAW,25 has
been consistently recognized throughout our jurisprudence,
24
The divorce act, MCL 552.1 et seq., at MCL 552.29
states that “[t]he legitimacy of all children begotten
before the commencement of any action under this act shall
be presumed until the contrary be shown.” (Emphasis added.)
See also MCL 700.2114(1)(a) (“If a child is born or
conceived during a marriage, both spouses are presumed to
be the natural parents of the child for the purposes of
intestate succession.”). See also the vital records act,
MCL 333.2824(1) (“The name of the husband at the time of
conception or, if none, the husband at birth shall be
registered as the father of the child” on the birth
certificate.) and MCL 333.2824(6) (“A child conceived by a
married woman with the consent of her husband following the
utilization
of
assisted
reproductive
technology
is
considered to be the legitimate child of the husband and
wife.”).
25
In re CAW, supra at 199.
14
and
can
be
overcome
only
by
a
showing
of
clear
and
convincing evidence.26 In Case, this Court stated:
The rule that a child born in lawful wedlock
will be presumed to be legitimate is as old as
the common law. It is one of the strongest
presumptions in the law. The ancient rule made
the presumption conclusive, if the husband was
within the four seas. The modern one permits the
presumption to be overcome, but only upon proof
which is very convincing. [Id. at 284 (emphasis
added).]
By requiring a previous determination that a child is
born
out
of
wedlock,
the
Legislature
has
essentially
limited the scope of parties who can rebut the presumption
of legitimacy to those capable of addressing the issue in a
prior proceeding—the mother and the legal father.27
Court
noted
during
in
divorce
Girard,
or
paternity
custody
claims
disputes,
and
As this
generally
the
arise
Legislature
contemplated “situations where a court in a prior divorce
or support proceeding determined that the legal husband of
the mother was not the biological father of the child.”28 If
the mother or legal father does not rebut the presumption
26
See Serafin v Serafin, 401 Mich 629; 258 NW2d 461
(1977); Wechsler v Mroczkowski, 351 Mich 483; 88 NW2d 394
(1958), overruled in part on other grounds by Bunda v
Hardwick, 376 Mich 640; 138 NW2d 305 (1965); Bassil v Ford
Motor Co, 278 Mich 173; 270 NW 258 (1936); People v Case,
171 Mich 282, 284; 137 NW 55 (1912).
27
As this Court has noted previously, "[t]here is no
area of law more requiring finality and stability than
family law.”
Hackley v Hackley, 426 Mich 582, 598; 395
NW2d 906 (1986)(opinion by BOYLE, J.).
28
437 Mich 246.
15
of
legitimacy,
the
presumption
remains
intact,
and
the
child is conclusively considered to be the issue of the
marriage despite lacking a biological relationship with the
father.29
d. Resolution of this case
In
this
case,
Larry
Lagrone
should
not
have
been
permitted to participate in the termination proceedings or
request a determination that he was the biological father
of three of the four children because, at the time of the
proceedings, Richard Jefferson was the legal father of the
children and the presumption of legitimacy remained intact.
29
The trial court relied on In re Montgomery in
granting
respondent
Lagrone’s
motion
to
establish
paternity. However, we believe that Montgomery was wrongly
decided and overrule it to the extent that it is
inconsistent with this opinion.
In Montgomery, the legal father was dismissed as a
party in parental termination proceedings against his wife.
After admitting that he was not the child’s biological
father, the legal father was dismissed from the proceedings
and another man was declared to be the child’s biological
father. The legal father appealed his dismissal from the
proceedings. The Court of Appeals held that once the legal
father admitted that he was not the biological father,
respondent was “not the minor child’s father within the
meaning of the court rules” and did not have standing to
participate in the termination hearing. 185 Mich App 343.
That the legal father admitted having no biological
relationship to his child does not indicate that he was
interested in relinquishing his parental rights to his
child.
Because the legal father appealed his dismissal
from the proceedings, it is fair to infer that he wanted to
be part of the termination proceedings, and may have been
interested in planning for the child. Nothing in Montgomery
indicates that the legal father was given the opportunity
to claim the benefit of the presumption of legitimacy.
16
However,
the
record
contains
evidence
that
could
plausibly support the conclusion that, during the course of
the
proceedings,
both
the
mother
and
the
legal
father
rebutted the presumption that the children were the issue
of
the
marriage.30
Tina
Jefferson
testified
that
her
husband was not the father of the children named in the
petition.
Richard Jefferson indicated that he was not the
children’s father; in addition, Jefferson maintained that
he did not wish to further participate in the proceedings.
The latter statement could reasonably be construed as an
indication
that
Jefferson
was
prepared
to
renounce
the
benefit afforded him by the presumption of legitimacy and
to not claim the children as his own.31
However, the trial court did not make a finding that
the presumption of legitimacy was rebutted by the parents.
If such a finding had been made, the children would have no
“father” as defined in MCR 5.903(A)(4), and another man,
presumably Larry Lagrone, could have been identified as a
putative father pursuant to MCR 5.921(D).
30
We read MCR 5.903(A)(1) to have been consistent
with the Paternity Act and to have required a prior
judicial determination that the subject children were not
the issue of the marriage before a claimed biological
father could be permitted an opportunity to establish a
legal relationship pursuant to MCR 5.921(D)(2)(b). However,
there is no basis for using the language of the Paternity
Act against the legal parents to restrict a mother or legal
father’s ability to rebut the presumption of legitimacy.
17
If Mr. Lagrone had been so identified, and elected to
establish paternity as permitted by MCR 5.921(D)(2)(b), the
out-of-wedlock determination made in the child protective
proceeding could serve as the prior determination needed to
pursue a claim under the Paternity Act. Girard, supra.
Accordingly, this case is remanded to the trial court
for such a determination.
If the court finds that the
presumption
was
of
legitimacy
rebutted
by
clear
and
convincing evidence from either parent that the children
are
not
the
issue
of
the
marriage,
the
court
further action in accordance with MCR 5.921(D).
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman
18
may
take
S T A T E
O F
M I C H I G A N
SUPREME COURT
In re: K.H., K.L., K.L., and
K.J., Minors.
_______________________________
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 122666
TINA JEFFERSON, RICHARD JEFFERSON,
FREDERICK HERRON, and LARRY LAGRONE.
Respondents-Appellants.
CAVANAGH, J. (dissenting).
Today, the majority holds yet again that our court
rules deprive a putative father of the right to participate
in child protective proceedings.
supported
by
our
court
rules
This viewpoint is not
and
it
denies
putative
fathers, as well as children, their due process rights.
Therefore, I respectfully dissent.
As stated in my dissent in In re CAW, 469 Mich 192,
209;
665
NW2d
475
(2003),
“the
Legislature
intended
to
allow putative fathers an opportunity to intervene in child
protective
proceedings.
Hence,
the
majority
errs
by
applying MCR 5.921(D) in a manner that prohibits standing.”
The court rules allow for a judicially determined judgment
of
paternity
to
be
used
to
determine
that
a
man
is
a
“father,” and the court rules make no mention that this
must
be
done
pursuant
to
the
Paternity
Act.
See
MCR
5.903(A) and 5.921(B)(3), now MCR 3.903(A) and 3.921(B),
(C).
In this case, the putative father was named a party to
the child protective proceedings by the Family Independence
Agency.
His participation was compelled, which makes the
majority’s determination that he does not have the right to
participate even more outrageous.
However, even if he had
not been named a party, to summarily deny him the right to
be determined to be a “father” denies the putative father
his due process rights, but, more importantly, it denies
courts the opportunity to determine what is in the best
interests of the children.
in
a
child
protective
This is never more evident than
proceeding,
where
the
children’s
legal parents may have their parental rights terminated,
thereby leaving the children with no legal parents and,
possibly,
no
caregivers.
Denying
putative
fathers
the
right to participate in the proceedings may deprive the
children of a chance to have a loving relationship with an
interested and caring parent.
The children’s legal mother in this case was a cocaine
addict and frequently homeless.
After years of abuse and
neglect, her rights are being terminated.
2
The children’s
legal father is in prison and wants nothing to do with the
children.
The
children’s
putative
father
seeks
nothing
more than a chance to be determined a “father” so that he
may have his custody and visitation rights considered by
the courts.
valuable
Denying him this right deprives the courts of
information
necessary
interests of the children.
to
determine
the
best
“Courts making paternity and
custody determinations have the authority to inquire about
a child’s putative father or parent in fact.
Without it, a
court would be deprived of the means necessary to ensure
that a child’s best interests and due-process rights are
protected.”
CAW, supra at 209 (Cavanagh, J., dissenting).
Further,
as
detailed
in
my
dissent
in
Girard
v
Wagenmaker, 437 Mich 231, 253-278; 470 NW2d 372 (1991),
nothing in our statutes or court rules requires that a
putative
father
must
first
separate legal proceeding.
precludes
a
putative
establish
paternity
in
a
This untenable rule effectively
father
from
establishing
a
relationship with his child unless approved by the legal
mother, regardless of whether the child has a legal father
who plays a role in his life and regardless of the reasons
the legal mother may choose to exclude the putative father.
Allowing
paternity
a
claim
putative
does
not
father
mean
3
standing
that
the
to
bring
claim
a
will
automatically be decided in his favor.
As I stated in
Girard, supra at 272, allowing a putative father “standing
to bring his paternity claim would not in any way endorse
or prejudge his claim to provide support for the child, or
his
claim
to
custody
or
visitation
rights.”
The
best
interests of the child are paramount, and the child’s best
interests can only be properly assessed if all parties are
given the opportunity to have their day in court.
the
majority,
“I
am
unwilling
to
make
the
Unlike
arbitrary
assumption that no support, custody, or visitation claim by
a putative father, regarding the child of a married woman,
will ever have sufficient merit to justify recognizing the
standing of any such claimants.”
Further,
unlike
the
Id.
majority,
I
do
not
believe
in
closing my eyes and pretending that the putative father
does not exist.
Some may argue that denying the putative
father standing protects the sanctity of marriage.
But as
I stated in Girard, supra at 271, “It is surely a bit late
to talk of preserving the ‘sanctity’ of the marital family
by the time a situation like the one alleged in this case
has arisen.”
I do not believe a putative father should be cast as a
villain merely because he seeks to establish a relationship
with
his
child.
Whether
the
4
establishment
of
such
a
relationship will be in the child’s best interests is a
matter for the court to decide,1 but to deny a putative
father standing to even make such a request deprives him,
and the
child, of due process rights.
Further, it is
noteworthy that the majority’s refusal to allow putative
fathers standing does not emanate solely from a concern to
protect intact families.
an
intact
family,
the
and
In cases in which there was not
majority
their
has
children,
continued
their
to
due
deny
putative
fathers,
process
rights.
See, e.g, Pniewski v Morlock, 469 Mich 898 (2003);
CAW, supra at 199.
An arbitrary, bright-line rule puts the illusion of an
intact family over the reality that children’s lives are at
stake.
This case highlights the problem.
testified
that
the
putative
father
was
The legal mother
the
biological
father of the children and the legal father also testified
that he was not the biological father of the children and
did not want to participate in the proceedings.
However,
if the legal mother and the legal father had not offered
testimony
rebutting
the
presumption
of
legitimacy,
the
putative father would have had no recourse.
1
See, e.g., In re Jesusa V, 32 Cal 4th 588; 10 Cal
Rptr 3d 205; 85 P3d 2 (2004).
5
Finally, a court is statutorily mandated to assess the
best interests of the child in all disputes involving a
minor
child’s
custody.
See
MCL
722.24.
However,
the
majority finds that the best interests control when there
is a custody dispute between two legal parents, but not
when a dispute involves a putative parent.
Children have
due process rights to be protected from arbitrary harm by
the
government.
The
child’s
right
to
have
his
best
interests decided by a court of law should not be inferior
to a legal father’s right to custody.
I
wholeheartedly
record
contains
during
the
agree
evidence
proceeding,
with
that
the
the
majority
supports
legal
a
mother
that
finding
and
the
the
that,
legal
father rebutted the presumption that the children were the
issue of their marriage.
However, while I believe that
there is more to being a parent than mere biology, I also
believe
that
there
is
more
to
being
rights conveyed by a marriage license.
a
parent
than
the
A narrow view of
standing grounded in neither statute nor court rule should
not defeat a meaningful examination of the best interests
of the children.
Therefore, I respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
6
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