While res judicata and estoppel principles have long existed to preserve the unitary, nuclear family, some states are moving away from these doctrines in favor of biological paternal certainty. Thus, if a man is not the biological father of a child—and was either uncertain or unaware of this biological fact—he may petition to disestablish paternity. These disestablishment petitions represent the emergence of a new family law phenomenon—the theory of paternity fraud.
Michigan is among a growing number of states seeking to enact a paternity fraud law. About 12 states currently have some form of paternity fraud law that permits a man who learns he is not the child’s biological father to vacate an order that previously established his legal parenthood. Several of these, like Michigan’s proposed statute, are open-ended, such that the man can file his motion to vacate his paternity at any time—for example, five, 10 or 15 years after the child’s birth. Still others have a stricter statute of limitations of two to three years. The statutes also vary with regards to vacating child support orders and arrearages and also ongoing visitation and parenting time. Thus, paternity fraud jurisprudence has at its core the difficulty of balancing competing best interests: those of the child and the child’s non-biological yet legal father. Whose rights are paramount? Whose should be paramount? And can we characterize this issue as one of genetic innocence?
Michigan House Bill 4120 would allow a man to have a prior judgment of paternity vacated upon showing that the man is not the child’s biological father or adoptive father and that the man did not know or had no reason to know that he is not the biological father.1 The proposed bill contains no statute of limitations for the filing of the motion, other than a requirement that the man must file the motion within six months of learning that he is not the biological father. The proposed bill does not, however, prevent a man who learns that he is not the biological father of his child 12 years after the child’s birth, for instance, from filing a motion to disestablish his paternity. Worse yet, the proposed bill and a companion bill, House Bill 4650, would permit the court to vacate all child support obligations and any arrearages, while still permitting the man to seek parenting time with the child. The proposed bill thus miserably fails to protect the best interests of children and instead places the rights of non-biological fathers well above those of the children that they have actively fathered for months and, oftentimes, years.