Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son.  (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.)  DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce.  Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test.  For his part, Husband requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio.  Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son.  The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess. 

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago.  The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.  In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that 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.

The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states.  Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another.  The doctrine is for the benefit of the child, not the parent. 

The Lipnevicius case is destined to return to the Michigan Supreme Court.  Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable paternity doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent.  Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

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