Motion Requirements

Posted January 26, 2019

If an adoption petitioner has been unable to obtain the consent required by MCL 710.43(1)(b), (c), or (d)], the petitioner may file a motion with the court alleging that the decision to withhold consent was arbitrary and capricious. A motion under this subsection shall contain information regarding both of the following:

(a) The specific steps taken by the petitioner to obtain the consent required and the results, if any.

(b) The specific reason why the petitioner believes the decision to withhold consent was arbitrary and capricious.” MCL 710.45(2).

1.Proper Venue

A motion regarding withheld consent should be filed in the same county as the adoption petition. See Section 4.3(A) for a discussion of proper venue for adoption petitions.

2 Notice

“The court shall provide notice of a motion brought under MCL 710.45 to all interested parties as described in [MCL 710.24a(1)], the guardian ad litem of the prospective adoptee if one has been appointed during a child protection proceeding, and the applicant who received consent to adopt.” MCL 710.45(5). “If the court knows or has reason to know the adoptee is an Indian child,” the court must also provide notice of the motion to the Indian child’s tribe and Indian custodian (if applicable), or where the Indian child’s parent, Indian custodian, or tribe is unknown, the Secretary of the Interior. MCR 3.800(B)(1)-(2).

Revoking an Acknowledgment of Parentage:

Posted December 7, 2018

Unless an acknowledgment of parentage has been properly revoked, an order of filiation under the Paternity Act may not be entered even though DNA evidence has determined that a man other than the man who signed the acknowledgment of parentage is the child’s biological parent. The child’s mother, the acknowledged father, an alleged father, or a prosecuting attorney may file an action for revocation of an acknowledgment of parentage.”28 MCL 722.1437(1).

An action for revocation may be filed, even if the acknowledgment was signed prior to the Acknowledgment of Parentage Act’s effective date of June 1, 1997. MCL 722.1012. However, an action for revocation may not be filed if the child is under the court jurisdiction under .MCL 712A.1 to MCL 712A.32, and a petition has been filed to terminate the parental rights to the child, unless the court having jurisdiction under MCL 712A.1 to MCL 712A.32, first finds that allowing an action under MCL 722.1437 would be in the best interests of the child.

Whether an action for revocation under MCL 722.1437 is brought by a complaint in an original action or by a motion in an existing action, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court is not required to represent any party regarding the action for revocation. If the case is a Title IV‐D case, the court may appoint an attorney approved by the office of child support to represent this state’s interests with respect to an action for revocation under the Revocation of Paternity Act.

The court may appoint a guardian ad litem to represent the child’s interests with respect to the action. An alleged father may not bring an action under MCL 722.1437 if the child is conceived as the result of acts for which the alleged father was convicted of criminal sexual conduct under MCL 750.520b to MCL 750.520e.

Sinicropi v Mazurek, 273 Mich App 149, 165 (2006).

What is Involuntary Termination?

Posted November 25, 2018

The court may involuntarily terminate a parent’s parental rights over a child under:

• The Adoption Code; or
• The Juvenile Code.

Because the procedures for involuntary termination of a putative father’s parental rights differ from the procedures followed for involuntary termination of a legal father’s parental rights, it is important to establish the type of father involved. Briefly, the types of fathers are:

• A legal father.
• A putative father.
• An equitable father. An equitable father is a man to whom the court grants legal father status.

A legal father’s parental rights may only be involuntarily terminated under a stepparent adoption pursuant to the Adoption Code or during child protective proceedings pursuant to the Juvenile Code. MCL 710.51(6); MCR 3.903(C)(10).

Involuntarily terminating a putative father’s parental rights under the Adoption Code will depend on whether the putative father is an interested or uninterested parent.  MCL 710.37, MCL 710.39, and MCL 710.51(6).

Under the Juvenile Code, a putative father is not permitted to participate in child protective proceedings where a legal father exists. However, if the court determines that a child has no legal father, the court may take the necessary steps to determine the child’s putative father and establish paternity.

Atkinson v Atkinson, 160 Mich App 601, 610‐611 (1987).

In re KH, 469 Mich 621, 624, 635 n 29 (2004),

DNA Testing and the Paternity Act:

Posted October 20, 2018

Under the Paternity Act, on its own motion or pursuant to a party’s request, a court must order a mother, child, and alleged father to submit to genetic testing. MCL 722.714(7); MCL 722.716. When a verified complaint is filed in accordance with the Paternity Act, neither a search warrant nor an evidentiary hearing is required prior to the court ordering blood tests.

Under the Revocation of Paternity Act, MCL 722.1443(5) requires the court to order the parties to an action or motion under the Revocation of Paternity Act, MCL 722.1431 et seq., to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under the Revocation of

Paternity Act, and the blood or tissue typing or DNA identification profiling shall be conducted in accordance with . . . MCL 722.716. However,“the results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under the Revocation of Paternity Act. MCL 722.1443(5). DNA results are not binding on a court making a determination under the Revocation of Paternity Act, MCL 722.1443(5), and that statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage.

MCL 722.716(2) requires the genetic testing to be conducted by a person accredited for paternity determination through a nationally recognized scientific organization (accredited expert). The testing consists of “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.” MCL 722.716(1).

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