Lawsuits to Revoke Paternity Must Name Defendant Spouses

Case Discussed:

Graham v. Foster

MiLW No. 07-88953

Michigan Court of Appeals - Published Case

An unmarried man and a married woman engage in an extra-marital affair and a child is born as a result. Michigan's Paternity Act (MCL 722.711-730) creates a presumption that the male spouse of a pregnant woman is the legal father of a child. The Plaintiff in the case, named Graham, was required to file a lawsuit under Michigan's Revocation of Paternity Act (MCL 722.1431-1445), in order to obtain legal custody over his child.

What to take away from this case?

There are two issues at play, both of which had significant repercussions for the Plaintiff's lawsuit.

The first issue is that the Plaintiff failed to name the Defendant/Mother's husband as a party to the lawsuit. The trial court sided with the Plaintiff that the Defendant's Husband need not be named in the lawsuit, based on the plain language of the Revocation of Paternity Act. The Michigan Court of Appeals disagreed, citing the Michigan Court Rules (MCR) that the Husband had a legal interest that would not be "adequately addressed" should he not be named as a party to the case, and therefore was a necessary party under MCR 2.205. The Plaintiff had, at the trial level, requested permission to amend his pleadings to include the Husband as a named defendant. The MCA ordered that the trial court permit the Plaintiff to name the Husband as an additional defendant, citing MCR 2.2118(a)(2), which requires that parties be permitted to amend their pleadings 'when justice so requires.'

The second issue of importance is that the Plaintiff's window of time under the RPA to file a revocation of paternity suit had closed while the first issue of the case (parties to be named) was being litigated. The Defendant/Mother filed a motion for summary judgment, in an attempt to prevent the Plaintiff from being able to re-file his lawsuit with both the Defendant/Mother and the Husband being named as parties. Both the trial court and the MCA denied this request, citing O'Keefe v. Clark Equipment Co., 106 Mich App 23, 26-27; 307 NW2d 343 (1981). The O'Keefe case had previously established that additional defendants may be added to a lawsuit where the statute of limitations has already expired if the new party is a necessary party. The Husband was a necessary party, and therefore could be added as a defendant, despite the statute of limitations expressed in the RPA having expired.

Closing Thoughts

  • Parties suing for legal and physical custody rights under the auspices of the Revocation of Paternity Act must name the defendant's spouse, if the Defendant and their spouse were married at the time of the birth of the child under consideration. This naming requirement exists despite not being listed as a requirement in the RPA.

  • Unmarried men who wish to establish legal custody over their children need to be fully aware of the limitations expressed in both the Paternity Act and the Revocation of Paternity Act.

  • Parents can be forever barred from establishing legal rights with respect to their children if they fail to act in a timely manner.

Full opinion available here, courtesy of

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