Order Michigan Supreme Court
Lansing, Michigan
March 28, 2008 Clifford W. Taylor,
Chief Justice
134465 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DOUGLAS VORIS, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 134465
COA: 273255
Shiawassee CC: 06-003668-DP
DEPARTMENT OF HUMAN
SERVICES,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the April 19, 2007
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CAVANAGH, J., would grant leave to appeal.
KELLY, J., dissents and states as follows:
This case has its genesis in the proceedings for the termination of parental rights to
Corbyn Voris. These proceedings were initially filed against Corbyn’s biological
parents, plaintiff Douglas Voris and Heather Cooper. After it was determined that, at the
time of Corbyn’s birth, Heather had been married to another man, Justin Cooper, the
matter was amended to name Heather and Justin as the parents.
Plaintiff attempted to intervene. To do so, he had to rebut the presumption that
Justin was the father. Plaintiff planned on rebutting the presumption by eliciting from
Heather testimony about their affair. However, before the testimony could be taken, the
prosecutor threatened Heather with prosecution for adultery if she testified that she had
had sex with plaintiff while married to Justin. Accordingly, Heather invoked her Fifth
Amendment rights and refused to answer plaintiff’s questions. Plaintiff was unable to
2
rebut the presumption. The court stated that, if Heather had testified that plaintiff was
Corbyn’s biological father, plaintiff could have intervened.
After their parental rights to Corbyn were terminated, Heather and Justin divorced.
In the divorce case, Justin claimed that he was not Corbyn’s father. The trial judge
agreed and ruled accordingly.
Following the entry of the divorce judgment, plaintiff brought this action under the
Paternity Act1 seeking a determination that he is Corbyn’s father. Defendant Department
of Human Services moved for summary disposition, arguing that plaintiff lacks standing.
The trial court denied the motion, and defendant appealed. While the appeal was
pending, the trial court granted summary disposition, ruling that plaintiff was Corbyn’s
father. But, the Court of Appeals reversed that determination, holding that plaintiff did
not have standing to bring the paternity action. Plaintiff challenged that decision in this
Court. A majority of the Court has decided to deny leave to appeal.
I disagree with that decision. My reasoning is as follows: The Paternity Act
confers standing on the biological father of a child born out of wedlock.2 By statute, a
child born out of wedlock is "a child begotten and born to a woman who was not married
from the conception to the date of birth of the child, or a child that the court has
determined to be a child born or conceived during a marriage but not the issue of that
marriage.”3 Accordingly, a biological father has standing to establish the paternity of a
child born during a marriage where a prior determination was made that the mother's
husband is not the father.4
Here, there is no issue about whether plaintiff is the biological father of Corbyn.
But the Court of Appeals held that because plaintiff did not rebut the presumption that
Justin was Corbyn’s father in the termination proceedings, plaintiff cannot establish
standing in the paternity proceedings. This Court should grant leave to appeal to consider
whether the Court of Appeals made the correct decision.
No appeal was taken from the determination in the divorce proceeding that
plaintiff was Corbyn’s father. Hence, there was a prior court determination that Justin is
not the father. This is all that Michigan law requires for plaintiff to establish standing
under the Paternity Act. On the other hand, in the divorce proceeding it was unnecessary
for the court to determine the identity of Corbyn’s father because Heather and Justin’s
1
MCL 722.711 et seq.
2
In re KH, 469 Mich 621, 631-632 (2004).
3
MCL 722.711(a).
4
In re KH, 469 Mich at 632.
3
parental rights had already been terminated. The court may not have had jurisdiction to
decide whether Justin was Corbyn’s father. I would grant leave to appeal to fully
consider the strong arguments on both sides of this issue.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 28, 2008 _________________________________________
l0325 Clerk