Faske v. Bonanno , 137 Mich. App. 202 ( 1984 )

137 Mich. App. 202 (1984) 357 N.W.2d 860

FASKE
v.
BONANNO

Docket No. 74210.

Michigan Court of Appeals.

Decided September 5, 1984.

J. Robert Rock for plaintiff.

Margaret Barton for defendant.

Before: V.J. BRENNAN, P.J., and ALLEN and GRIBBS, JJ.

PER CURIAM.

Defendant appeals as of right from an order of paternity entered September 20, 1983, following a bench trial held on plaintiff's action under the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq. Blood tests admitted on stipulation of the parties showed a 99.8% probability that the defendant was the child's father.

Defendant does not seriously contest the finding of paternity but claims that it is unjust to order support when the plaintiff fraudulently represented that she was taking birth control pills, when she in fact was not taking them. Therefore, defendant argues, plaintiff should not be allowed to advance her fraud by placing the financial burden on the defendant.

No Michigan decision has ruled on this issue. However, other jurisdictions have resolved the issue against defendant. Stephen K v Roni L, 105 Cal App 3d 640; 164 Cal Rptr 618 (1980); Hughes v Hutt, 500 Pa 209; 455 A2d 623 (1983); L Pamela P v Frank S, 59 NY2d 1; 462 NYS2d 819; 449 NE2d 713 (1983). We see no reason why Michigan should rule differently.

Fraud or misrepresentation as to contraceptive protection by the mother should not be a defense under Michigan's Paternity Act. Parents have an obligation to support their children and the circumstances of a child's conception do not give rise to an exception to that rule. A parent cannot, merely by virtue of being the parent, waive, release, or compromise a child's claim in a paternity action. Tuer v Niedoliwka, 92 Mich. App. 694, 698-699; 285 NW2d 424 (1979). Since a child may not suffer for a parent's release of the child's claim, neither should the child suffer from one of the parents' "fault" regarding the conception.

Affirmed.