Family Law

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Thursday, August 18, 2022

THAT AFFIDAVIT OF PARENTAGE: Hold the Phone – the Kid is Not My Son!

By Michael Nichols
Categories: Family Law

Michael Jackson said it best: “the kid is not my son.” It is a song called “Billie Jean” and in 1984 it was a smash hit from the “Thriller” album. It was about Michael Jackson’s experience in having been sued for fathering a child that … despite the protestations of his “ex” the child was simply not his.
Parenthood: a job that is accompanied by sleepless nights, endless financial expenditures, and a great deal of responsibility. OK so you had a fling; a one-nighter; a sesh from the snap – she says it is yours but what if you are just not sure?
When a child is born to a mother that is not married, the mother and the acknowledged father make everything legal if they both sign an Affidavit Of Parentage (AOP). This is a legal document that does makes the acknowledged father the legal father of the child. Yet, there is more: additionally, the parties waive the right to genetic testing to determine if the man is the biological father of the child. If there is reason to believe that the acknowledged father is not the biological father, an interested party can file a motion under the Revocation Of Paternity Act (ROPA). However, generally such a motion must be filed within 3 years after the child’s birth or within 1 year of the date that the mom and suspected – or as the law says “putative” dad sign the AOP, whichever is later.
Recently, I had a client who signed the AOP immediately following the birth of the child in February 2019. Within the first few months of the child’s life there was reason to believe that he might not be the biological father. He took it upon himself to have DNA testing done which concluded that there was no chance that he was the biological father. These results were known to my client (before he was my client) in summer of 2019. For a variety of reasons, the client did not retain counsel until after the child’s third birthday. In the spring of 2022, he signed a Consent Order for Child Support, because he thought he had to sign it.
Like many rules, the Revocation Of Paternity Act (ROPA) has exceptions, most importantly there are exceptions regarding when the timeline to file a motion under the act can be extended. After consulting with the client and hearing the facts surrounding his case, we filed a motion to extend the time for filing an action under ROPA citing MCL 722.1443(12). Not only did the judge agree to extend the timeline, the court found that the proofs presented proved by clear and convincing evidence that my client was not the child’s biological father and ruled in his favor on the underlying issue and revoked the AOP.
Even though he already knew it to be true, my client was ecstatic to hear me tell him “you are not the father!” Now he is no longer the legal father to a child that is not his and no longer obligated to pay child support. He is at peace.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.