Hoshowski v. Genaw

584 N.W.2d 368 (1998) 230 Mich. App. 498

Michael HOSHOWSKI, Plaintiff-Appellee,
v.
Christina GENAW, Defendant-Appellant.

Docket No. 200080.

Court of Appeals of Michigan.

Submitted April 22, 1998, at Lansing. Decided June 26, 1998, at 9:10 a.m. Released for Publication September 29, 1998.

McIntosh, McColl, Carson, McNamee, Strickler & Rickel (by Nancy Bates Rickel), Fort Gratiot, for Plaintiff-Appellee.

Heyboer & Floyd, P.L.L.C. by David R. Heyboer, Port Huron, for Defendant-Appellant.

Before HOLBROOK, P.J., and GRIBBS and R.J. DANHOF^[*], JJ.

GRIBBS, Judge.

Defendant appeals by leave from an order of filiation that deemed plaintiff to be the father of defendant's daughter. Defendant claimed in her application for leave that plaintiff lacked standing to seek the order of filiation pursuant to the Paternity Act, M.C.L. § 722.711 et seq.; M.S.A. § 25.491 et seq., and the Supreme Court's ruling in Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991), because she was a married woman from the time of conception to the birth of the child. In granting leave, this Court requested that the parties address the effects of the 1994 amendment of the Revised Probate Code that added subsection 9 to M.C.L. § 700.111; M.S.A. § 27.5111 and the 1994 amendment of the Paternity Act that added a new subsection 2 to M.C.L. § 722.714; M.S.A. § 24.494, including the question whether an acknowledgment of paternity under these amendments presumptively establishes paternity for all purposes, relieving the putative father of the need to file a complaint under the Paternity Act. We hold that the parties' properly executed affidavit of parentage establishes plaintiff as a parent under the Revised Probate Code and that plaintiff was not required to file an action under the Paternity Act before seeking custody and parenting time under the Child Custody Act, M.C.L. § 722.21 et seq.; M.S.A. § 25.312(1) et seq. Accordingly, we affirm.

Defendant argues that this action is controlled by the Paternity Act, because defendant's child was not a "child born out of wedlock" as defined under the act. M.C.L. § 722.711(a); M.S.A. § 25.491(a). We do not agree. Before the 1994 amendments of the Revised Probate Code and the Paternity Act, a proper action under the Paternity Act was necessary before a complaint could be filed under the Child Custody Act. Afshar v. Zamarron, 209 Mich.App. 86, 89, 92, n. 7, 530 N.W.2d 490 (1995). However, subsection 2 of § 4 of the Paternity Act, M.C.L. § 722.714(2); M.S.A. § 25.494(2), a provision that was added as part of its 1994 amendment, provided during the period here relevant:

An action is not required to be brought under this act if the child's father acknowledges paternity under section 111 of the revised probate code, Act No. 642 of the Public Acts of 1978, being section 700.111 of the Michigan Compiled Laws, or if the child's paternity is established under the law of another state.^[1]

Subsection 9 of § 111 of the Revised Probate Code, M.C.L. § 700.111(9); M.S.A. § 27.5111(9), added in 1994,^[2] provided during the period here relevant:

An acknowledgment of paternity executed as provided in this section is presumed to establish paternity for all purposes. The acknowledgment may be set aside by the circuit court in the county where it is filed only if the man is proven not to be the father by clear and convincing evidence. [Emphasis added.]

The amended statute also provided a specific procedure for executing and filing an acknowledgment of paternity.

The statutory amendments are clear and unambiguous. Because plaintiff and defendant properly executed an affidavit of paternity when the child was born in 1995, plaintiff's paternity was established "for all purposes" unless he was proved not to be the father by clear and convincing evidence. Because his paternity has already been established, plaintiff is not required to proceed under the Paternity Act before seeking parenting time and custody of his child.

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] See also 1996 P.A. 305, the Acknowledgment of Parentage Act, specifically § 4, M.C.L. § 722.1004; M.S.A. § 25.604. Section 2 of the Paternity Act was amended at the same time by 1996 P.A. 308 by replacing the reference to an acknowledgment of paternity under the Revised Probate Code with a reference to an acknowledgment of paternity under the Acknowledgment of Parentage Act.

[2] Subsection 9 of § 11 of the Revised Probate Code was subsequently deleted by 1996 P.A. 306, which was enacted in conjunction with the enactment of 1996 P.A. 305, the Acknowledgment of Parentage Act.