In Re KH

Michigan Supreme Court

Lansing, Michigan 48909

Chief Justice Justices

Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED APRIL 14, 2004

In re: KH, KL, KL, AND KJ,

MINORS.

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellee,

v No. 122666

TINA JEFFERSON, RICHARD JEFFERSON,
FREDERICK HERRON, AND LARRY LAGRONE,

Respondents-Appellants.
____________________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

We granted leave to appeal in this case to determine

whether our court rules, MCR 5.900 et seq.,1 allow a

biological father to request a paternity determination

1
Effective May 1, 2003, MCR 5.900 et seq. were amended
and relocated to MCR 3.900 et seq. While the former court
rules were in effect during the pendency of this case, the
subsequent amendments do not alter the analysis or outcome
of this case.
during a child protective proceeding in which the subject

children have a legal father. We hold that our court rules

do not permit a biological father to participate in a child

protective proceeding where a legal father exists. Indeed,

where a legal father exists, a biological father cannot

properly be considered even a putative father.

Under Michigan law, a presumption of legitimacy

attaches to a child born or conceived during an intact

marriage. Unless and until the presumption of legitimacy

is rebutted in a prior proceeding, an alleged biological

father cannot seek a determination that he is the natural

father of the child pursuant to MCR 5.921(D), and cannot

establish a legal paternal relationship in accordance with

MCR 5.903(A)(4). The Family Independence Agency erred by

naming multiple men in the termination petition where a

legal father existed.

In this case, the alleged biological father was not a

proper party to the proceedings and could not request a

determination that he was the biological father of the

children because the children already had a legal father at

the time of the proceedings. However, the record contains

evidence that could support a finding that both the mother

and the legal father, during the course of the proceedings,

rebutted the presumption that the children were the issue

of the marriage. The trial court did not make a finding

that the presumption of legitimacy was rebutted by the

parents. Accordingly, this case is remanded to the trial

court for such a determination. If the court finds that

the presumption of legitimacy was rebutted by the parents

by clear and convincing evidence that the children are not

the issue of the marriage, the court may take further

action in accordance with MCR 5.921(D).

I. Facts and Procedural History

On April 25, 2002, the Oakland Circuit Court, Family

Division, authorized a petition requesting the termination

of the parental rights of Tina and Richard Jefferson. The

petition also named Larry Lagrone and Frederick Herron as

the “putative” fathers of the children.2 On motion of the

prosecution at a pretrial hearing, the petition was

subsequently amended by the Family Independence Agency to

request that the court terminate the parental rights of

fathers Jefferson, Herron, Lagrone, “and/or father John

Doe.”

At a bench trial conducted on July 8, 2002, the family

division referee took testimony establishing that Tina

Jefferson was legally married to Richard Jefferson during

each child’s conception and birth, as well as during the

pendency of the child protective proceedings. The referee

2
Lagrone was named as the putative father of KL, KL,
and KJ. Herron was named as the putative father of KH.
3
noted that because Richard Jefferson was the legal father

of the children, there was “no reason” for Lagrone or

Herron to participate in the proceedings “unless there’s a

challenge otherwise.”

Lagrone’s counsel asked the referee to make a finding

that Richard Jefferson was not the “natural father” of the

children so that Lagrone could establish “a legal

relationship.” Tina Richardson testified that Herron was

the biological father of KH, and that Larry Lagrone was the

biological father of KL, KL, and KJ. Through counsel,

Richard Jefferson indicated that he was not the biological

father of the children named in the petition and did not

wish to participate further in the proceedings. According

to the Family Independence Agency, DNA (deoxyribonucleic

acid) testing established that Lagrone was the biological

father of KL, KL, and KJ. On the basis of this evidence,

the referee determined that Lagrone was the biological

father of the three children.

Lagrone filed a motion in the circuit court seeking a

ruling that Jefferson was not the father of the three

children within the meaning of MCR 5.903. The children’s

mother argued that a putative father did not have standing

to establish paternity in a neglect proceeding. Relying on

In re Montgomery,3 the circuit judge held that Lagrone was

3
185 Mich App 341; 460 NW2d 610 (1990).
4
the biological father of the children and had standing to

seek paternity. It did not make an express finding that

the children were not the issue of the marriage. Lagrone’s

motion to establish paternity was granted, although the

circuit judge indicated that it was “troubled” by the

result.

Relying on the circuit court ruling, the referee at

the termination hearing indicated that Lagrone was the

legal father of three children. The referee ordered

Herron, the alleged biological father of KH, to establish

paternity within fourteen days or “lose all rights” to the

child.

The lawyer-guardian ad litem sought leave to file an

interlocutory appeal in the Court of Appeals, which was

denied. After the case was held in abeyance for In re CAW,4

we granted leave to appeal.5

II. Standard of Review

On appeal, the guardian ad litem argues that the trial

court erred by granting the biological father’s motion to

establish paternity because he lacked standing, either in

the context of a child protective proceeding or under the

Paternity Act, MCL 722.711 et seq. Whether a party has

4
469 Mich 192; 665 NW2d 475 (2003).

5
469 Mich 896 (2003).

standing to bring an action involves a question of law that

is reviewed de novo.6

When called on to construe a court rule, this Court

applies the legal principles that govern the construction

and application of statutes.7 Accordingly, we begin with

the plain language of the court rule. When that language is

unambiguous, we must enforce the meaning expressed, without

further judicial construction or interpretation.8

Similarly, common words must be understood to have their

everyday, plain meaning.9

III. Analysis

a. The Court Rules

The juvenile code, MCL 712A.1 et seq., delineates the

scope and jurisdiction of the court in juvenile

proceedings, including child protective proceedings, but

does not address paternity issues. MCR 5.901 et seq., now

MCR 3.901 et seq., were the court rules that governed

juvenile proceedings. The scope of those rules, as

articulated in MCR 5.901(A), was to “govern practice and

6
Lee v Macomb Co Bd of Comm'rs, 464 Mich 726, 734; 629
NW2d 900 (2001).
7
CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich 549,
553; 640 NW2d 256 (2002).
8
Veenstra v Washtenaw Country Club, 466 Mich 155, 160;
645 NW2d 643 (2002).
9
See MCL 8.3a; see also Perez v Keeler Brass Co, 461
Mich 602, 609; 608 NW2d 45 (2000).
6

procedure . . . in all cases filed under the Juvenile

Code.”

MCR 5.921, now MCR 3.921, described the parties who

were entitled to notice in various juvenile proceedings.

MCR 5.921(D), now MCR 3.921(C), provided a mechanism for

identifying and providing notice to a putative father.

That rule stated that “[i]f at any time during the pendency

of a proceeding, the court determines that the minor has no

father as defined in MCR 5.903(A)(4),[10] the court may, in

10
Father was defined in our court rules at MCR
5.903(A)(4) as:
(a) a man married to the mother at any time
from a minor’s conception to the minor’s birth
unless the minor is determined to be a child born
out of wedlock;

(b) a man who legally adopts the minor;

(d) a man whose paternity is established in
one of the following ways . . . :

(i) the man and the mother of the minor
acknowledge that he is the minor’s father by
completing and filing an acknowledgment of
paternity. . . .

(ii) the man and the mother file a joint
written request for a correction of the
certificate of birth pertaining to the minor that
results in issuance of a substituted certificate
recording the birth [.]

(iii) the man acknowledges that he is the
minor’s father by completing and filing an
acknowledgment of paternity, without the mother
joining in the acknowledgment if she is
7
its discretion” take action to determine the identity of

the minor’s natural father.11

disqualified from signing the acknowledgement
by reason of mental incapacity (or) death. . . .

(iv) a man who by order of filiation or by
judgment of paternity is determined judicially to
be the father of the minor.
11
MCR 5.921(D) provided in pertinent part:

(1) The court may take initial testimony on
the tentative identity and address of the natural
father. If the court finds probable cause to
believe that an identifiable person is the
natural father of the minor, the court shall
direct that notice be served on that person
. . . .

(2) After notice to the putative father,
. . . the court may conduct a hearing and
determine that:

* * *

(b) a preponderance of the evidence
establishes that the putative father is the
natural father of the minor and justice requires
that he be allowed 14 days to establish his
relationship according to MCR 5.903(A)(4)[now MCR
3.903 (A)(7)] . . . .

(3) The court may find that the natural
father waives all rights to further notice,
including the right to notice of termination of
parental rights, and the right to legal counsel
if

(a) he fails to appear after proper notice,
or

(b) he appears, but fails to establish
paternity within the time set by the court.

8
The court rule clearly permitted a putative father to

be identified and given notice of court hearings only where

the minor had “no father.” MCR 5.921(D), now MCR 3.921(C).

Therefore, if a father already existed under MCR

5.903(A)(4), a putative father could not be identified as a

respondent or otherwise given notice.12

It is uncontested that Tina and Richard Jefferson were

legally married at the time of each minor’s conception and

birth. Our court rules contemplated that only one man be

identified as a respondent in a termination proceeding.13

Pursuant to MCR 5.903(A)(4)(a), Richard Jefferson is the

children’s father.14 No other man may be identified as a

12
The amended court rules include MCR 3.903(A)(23),
defining putative father as “a man who is alleged to be the
biological father of a child who has no father as defined
in MCR 3.903(A)(7).”
13
In termination proceedings, “respondent” included
“the father of the child as defined by MCR 5.903(A)(4) [now
MCR 3.903(A)(7)].” MCR 5.974(B)(2). (Emphasis added.) The
rule contemplated only one man, not a series of identified
and unidentified men. See also amended court rule MCR
3.977(B)(2).
14
In this case, the Family Independence Agency failed
to follow the plain language of the court rule when it
named multiple men as respondents in the termination
petition where the minor children already had a father. At
oral argument, the parties indicated that the Family
Independence Agency routinely names multiple men on
termination petitions, including “John Doe,” even where a
legal father exists. We reiterate that there is no basis
in the court rules for naming serial men on a termination
petition when a legal father exists.
9
putative father unless the minors are determined to be

“born out of wedlock.”15

The term “child born out of wedlock” was defined at

MCR 5.903(A)(1) as a child “conceived and born to a woman

who is unmarried from the conception to the birth of the

child, or a child determined by judicial notice or

otherwise to have been conceived or born during a marriage

but who is not the issue of that marriage.”16 Respondent

Lagrone maintains that the children were judicially

determined to be “born out of wedlock” when the referee

determined that Lagrone was the biological father of the

three children.

15
It is worth noting that where a child had no father,
and a putative father was properly identified, the putative
father had to establish a legal relationship with the child
in order to be named as a respondent in the termination
petition. See MCR 5.974(B)(2), now MCR 3.977(B)(2). If a
putative father failed to establish paternity within the
time set by the court, he could be deemed to have waived
all rights to further notice and any right to counsel. MCR
5.921(D)(3), now MCR 3.921(C)(3).
16
Under the amended court rules, the definition of
“child born out of wedlock” was removed and incorporated
into the amended definition of “father.” See MCR
3.903(A)(7)(a)(“Father” means “[a] man married to the
mother at any time from a minor’s conception to the minor’s
birth, unless a court has determined, after notice and a
hearing, that the minor was conceived or born during the
marriage, but is not the issue of the marriage[.]”).

b. The Paternity Act

In this case, respondent Lagrone sought a

judicial determination that his biological relationship to

three of the children named in the petition was sufficient

to rebut the presumption of legitimacy and establish

Lagrone’s status as the legal father of the children. In

essence, Lagrone sought to establish legal paternity in a

child protective proceeding rather than through the

legislatively provided mechanism designed to govern the

establishment of paternity claims—the Paternity Act.

Standing to pursue relief under the Paternity Act, MCL

722.711 et seq., is conferred on the mother or father of a

child born out of wedlock, or on the Family Independence

Agency in limited circumstances.17 Under the statute, a

“child born out of wedlock” is defined as “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.”18

In Girard v Wagenmaker,19 this Court held that a

biological father had no standing to establish paternity of

a child born during an intact marriage “without a prior

17
MCL 722.714(1),(4).
18
MCL 722.711(a).
19
437 Mich 231; 470 NW2d 372 (1991).
11
determination that the mother’s husband is not the

father.”20 A “prior determination” was required because the

Legislature used the present perfect tense of the verb

“determine,” which was indicative of a past action rather

than a contemporaneous action. Additionally, requiring a

prior determination comported “with the traditional

preference for respecting the presumed legitimacy of a

child born during a marriage.”21

Clearly, if respondent Lagrone had sought to establish

paternity under the Paternity Act, his claim would have

failed for lack of standing because, at the time he sought

to establish paternity, there was no prior adjudication

that the children were born out of wedlock.

In In re CAW, the majority opinion did not reach the

question presented in this case, because “no finding was

ever made by the court that [the child] was not the issue

of the marriage.”22 However, Justice WEAVER’S concurring

opinion did address the issue, reconciling the court rules

with the Paternity Act. We agree with and adopt this

analysis. Specifically, Justice WEAVER noted that the

20
Id. at 235. In Girard, the plaintiff claimed to be
the biological father of a child conceived and born during
the marriage of the defendant and her husband. Defendant’s
husband “continuously accepted and supported the child as
his own.” Id.
21
Id. at 246.

22
In re CAW, supra at 199.

definition of “child born out of wedlock” in the court

rules varies from that in the Paternity Act “only in its

additional provision that a child may be determined to be

born out of wedlock ‘by judicial notice or otherwise’ and

in its use of the past tense of the verb ‘to determine,’

rather than the present perfect tense of that verb.”23

Accordingly, we conclude, consistently with the language of

the Paternity Act, that a determination that a child is

born out of wedlock must be made by the court before a

biological father may be identified in a child protective

proceeding.

Under either version of the court rule, MCR 5.921(D)

or MCR 3.921(C), a prior out-of-wedlock determination does

not confer any type of standing on a putative father.

Rather, the rules give the trial court the discretion to

provide notice to a putative father, and permit him to

establish that he is the biological father by a

preponderance of the evidence. Once proved, the biological

father is provided fourteen days to establish a legally

recognized paternal relationship.

Nothing in the prior or amended court rules permits a

paternity determination to be made in the midst of a child

protective proceeding. Rather, once a putative father is

identified in accordance with the court rules, the impetus

23
469 Mich 202-203.
13

is clearly placed on the putative father to secure his

legal relationship with the child as provided by law. If

the legal relationship is not established, a biological

father may not be named as a respondent on a termination

petition, the genetic relationship notwithstanding. MCR

5.974(B)(2).

c. The Presumption of Legitimacy

The presumption that children born or conceived during

a marriage are the issue of that marriage is deeply rooted

in our statutes and case law.24 This presumption of

legitimacy, most recently reaffirmed in In re CAW,25 has

been consistently recognized throughout our jurisprudence,

24
The divorce act, MCL 552.1 et seq., at MCL 552.29
states that “[t]he legitimacy of all children begotten
before the commencement of any action under this act shall
be presumed until the contrary be shown.” (Emphasis added.)
See also MCL 700.2114(1)(a) (“If a child is born or
conceived during a marriage, both spouses are presumed to
be the natural parents of the child for the purposes of
intestate succession.”). See also the vital records act,
MCL 333.2824(1) (“The name of the husband at the time of
conception or, if none, the husband at birth shall be
registered as the father of the child” on the birth
certificate.) and MCL 333.2824(6) (“A child conceived by a
married woman with the consent of her husband following the
utilization of assisted reproductive technology is
considered to be the legitimate child of the husband and
wife.”).
25
In re CAW, supra at 199.
14
and can be overcome only by a showing of clear and

convincing evidence.26 In Case, this Court stated:

The rule that a child born in lawful wedlock
will be presumed to be legitimate is as old as
the common law. It is one of the strongest
presumptions in the law. The ancient rule made
the presumption conclusive, if the husband was
within the four seas. The modern one permits the
presumption to be overcome, but only upon proof
which is very convincing. [Id. at 284 (emphasis
added).]
By requiring a previous determination that a child is

born out of wedlock, the Legislature has essentially

limited the scope of parties who can rebut the presumption

of legitimacy to those capable of addressing the issue in a

prior proceeding—the mother and the legal father.27 As this

Court noted in Girard, paternity claims generally arise

during divorce or custody disputes, and the Legislature

contemplated “situations where a court in a prior divorce

or support proceeding determined that the legal husband of

the mother was not the biological father of the child.”28 If

the mother or legal father does not rebut the presumption

26
See Serafin v Serafin, 401 Mich 629; 258 NW2d 461
(1977); Wechsler v Mroczkowski, 351 Mich 483; 88 NW2d 394
(1958), overruled in part on other grounds by Bunda v
Hardwick, 376 Mich 640; 138 NW2d 305 (1965); Bassil v Ford
Motor Co, 278 Mich 173; 270 NW 258 (1936); People v Case,
171 Mich 282, 284; 137 NW 55 (1912).
27
As this Court has noted previously, "[t]here is no
area of law more requiring finality and stability than
family law.” Hackley v Hackley, 426 Mich 582, 598; 395
NW2d 906 (1986)(opinion by BOYLE, J.).
28
437 Mich 246.
15

of legitimacy, the presumption remains intact, and the

child is conclusively considered to be the issue of the

marriage despite lacking a biological relationship with the

father.29

d. Resolution of this case

In this case, Larry Lagrone should not have been

permitted to participate in the termination proceedings or

request a determination that he was the biological father

of three of the four children because, at the time of the

proceedings, Richard Jefferson was the legal father of the

children and the presumption of legitimacy remained intact.

29
The trial court relied on In re Montgomery in
granting respondent Lagrone’s motion to establish
paternity. However, we believe that Montgomery was wrongly
decided and overrule it to the extent that it is
inconsistent with this opinion.

In Montgomery, the legal father was dismissed as a
party in parental termination proceedings against his wife.
After admitting that he was not the child’s biological
father, the legal father was dismissed from the proceedings
and another man was declared to be the child’s biological
father. The legal father appealed his dismissal from the
proceedings. The Court of Appeals held that once the legal
father admitted that he was not the biological father,
respondent was “not the minor child’s father within the
meaning of the court rules” and did not have standing to
participate in the termination hearing. 185 Mich App 343.

That the legal father admitted having no biological
relationship to his child does not indicate that he was
interested in relinquishing his parental rights to his
child. Because the legal father appealed his dismissal
from the proceedings, it is fair to infer that he wanted to
be part of the termination proceedings, and may have been
interested in planning for the child. Nothing in Montgomery
indicates that the legal father was given the opportunity
to claim the benefit of the presumption of legitimacy.
16
However, the record contains evidence that could

plausibly support the conclusion that, during the course of

the proceedings, both the mother and the legal father

rebutted the presumption that the children were the issue

of the marriage.30 Tina Jefferson testified that her

husband was not the father of the children named in the

petition. Richard Jefferson indicated that he was not the

children’s father; in addition, Jefferson maintained that

he did not wish to further participate in the proceedings.

The latter statement could reasonably be construed as an

indication that Jefferson was prepared to renounce the

benefit afforded him by the presumption of legitimacy and

to not claim the children as his own.31

However, the trial court did not make a finding that

the presumption of legitimacy was rebutted by the parents.

If such a finding had been made, the children would have no

“father” as defined in MCR 5.903(A)(4), and another man,

presumably Larry Lagrone, could have been identified as a

putative father pursuant to MCR 5.921(D).

30
We read MCR 5.903(A)(1) to have been consistent
with the Paternity Act and to have required a prior
judicial determination that the subject children were not
the issue of the marriage before a claimed biological
father could be permitted an opportunity to establish a
legal relationship pursuant to MCR 5.921(D)(2)(b). However,
there is no basis for using the language of the Paternity
Act against the legal parents to restrict a mother or legal
father’s ability to rebut the presumption of legitimacy.

If Mr. Lagrone had been so identified, and elected to

establish paternity as permitted by MCR 5.921(D)(2)(b), the

out-of-wedlock determination made in the child protective

proceeding could serve as the prior determination needed to

pursue a claim under the Paternity Act. Girard, supra.

Accordingly, this case is remanded to the trial court

for such a determination. If the court finds that the

presumption of legitimacy was rebutted by clear and

convincing evidence from either parent that the children

are not the issue of the marriage, the court may take

further action in accordance with MCR 5.921(D).

Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

In re: K.H., K.L., K.L., and
K.J., Minors.
_______________________________
FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellee,

v No. 122666

TINA JEFFERSON, RICHARD JEFFERSON,
FREDERICK HERRON, and LARRY LAGRONE.

Respondents-Appellants.

CAVANAGH, J. (dissenting).

Today, the majority holds yet again that our court

rules deprive a putative father of the right to participate

in child protective proceedings. This viewpoint is not

supported by our court rules and it denies putative

fathers, as well as children, their due process rights.

Therefore, I respectfully dissent.

As stated in my dissent in In re CAW, 469 Mich 192,

209; 665 NW2d 475 (2003), “the Legislature intended to

allow putative fathers an opportunity to intervene in child

protective proceedings. Hence, the majority errs by

applying MCR 5.921(D) in a manner that prohibits standing.”

The court rules allow for a judicially determined judgment

of paternity to be used to determine that a man is a
“father,” and the court rules make no mention that this

must be done pursuant to the Paternity Act. See MCR

5.903(A) and 5.921(B)(3), now MCR 3.903(A) and 3.921(B),

(C).

In this case, the putative father was named a party to

the child protective proceedings by the Family Independence

Agency. His participation was compelled, which makes the

majority’s determination that he does not have the right to

participate even more outrageous. However, even if he had

not been named a party, to summarily deny him the right to

be determined to be a “father” denies the putative father

his due process rights, but, more importantly, it denies

courts the opportunity to determine what is in the best

interests of the children. This is never more evident than

in a child protective proceeding, where the children’s

legal parents may have their parental rights terminated,

thereby leaving the children with no legal parents and,

possibly, no caregivers. Denying putative fathers the

right to participate in the proceedings may deprive the

children of a chance to have a loving relationship with an

interested and caring parent.

The children’s legal mother in this case was a cocaine

addict and frequently homeless. After years of abuse and

neglect, her rights are being terminated. The children’s

legal father is in prison and wants nothing to do with the

children. The children’s putative father seeks nothing

more than a chance to be determined a “father” so that he

may have his custody and visitation rights considered by

the courts. Denying him this right deprives the courts of

valuable information necessary to determine the best

interests of the children. “Courts making paternity and

custody determinations have the authority to inquire about

a child’s putative father or parent in fact. Without it, a

court would be deprived of the means necessary to ensure

that a child’s best interests and due-process rights are

protected.” CAW, supra at 209 (Cavanagh, J., dissenting).

Further, as detailed in my dissent in Girard v

Wagenmaker, 437 Mich 231, 253-278; 470 NW2d 372 (1991),

nothing in our statutes or court rules requires that a

putative father must first establish paternity in a

separate legal proceeding. This untenable rule effectively

precludes a putative father from establishing a

relationship with his child unless approved by the legal

mother, regardless of whether the child has a legal father

who plays a role in his life and regardless of the reasons

the legal mother may choose to exclude the putative father.

Allowing a putative father standing to bring a

paternity claim does not mean that the claim will

automatically be decided in his favor. As I stated in

Girard, supra at 272, allowing a putative father “standing

to bring his paternity claim would not in any way endorse

or prejudge his claim to provide support for the child, or

his claim to custody or visitation rights.” The best

interests of the child are paramount, and the child’s best

interests can only be properly assessed if all parties are

given the opportunity to have their day in court. Unlike

the majority, “I am unwilling to make the arbitrary

assumption that no support, custody, or visitation claim by

a putative father, regarding the child of a married woman,

will ever have sufficient merit to justify recognizing the

standing of any such claimants.” Id.

Further, unlike the majority, I do not believe in

closing my eyes and pretending that the putative father

does not exist. Some may argue that denying the putative

father standing protects the sanctity of marriage. But as

I stated in Girard, supra at 271, “It is surely a bit late

to talk of preserving the ‘sanctity’ of the marital family

by the time a situation like the one alleged in this case

has arisen.”

I do not believe a putative father should be cast as a

villain merely because he seeks to establish a relationship

with his child. Whether the establishment of such a

relationship will be in the child’s best interests is a

matter for the court to decide,1 but to deny a putative

father standing to even make such a request deprives him,

and the child, of due process rights. Further, it is

noteworthy that the majority’s refusal to allow putative

fathers standing does not emanate solely from a concern to

protect intact families. In cases in which there was not

an intact family, the majority has continued to deny

putative fathers, and their children, their due process

rights. See, e.g, Pniewski v Morlock, 469 Mich 898 (2003);

CAW, supra at 199.

An arbitrary, bright-line rule puts the illusion of an

intact family over the reality that children’s lives are at

stake. This case highlights the problem. The legal mother

testified that the putative father was the biological

father of the children and the legal father also testified

that he was not the biological father of the children and

did not want to participate in the proceedings. However,

if the legal mother and the legal father had not offered

testimony rebutting the presumption of legitimacy, the

putative father would have had no recourse.

1
See, e.g., In re Jesusa V, 32 Cal 4th 588; 10 Cal
Rptr 3d 205; 85 P3d 2 (2004).

Finally, a court is statutorily mandated to assess the

best interests of the child in all disputes involving a

minor child’s custody. See MCL 722.24. However, the

majority finds that the best interests control when there

is a custody dispute between two legal parents, but not

when a dispute involves a putative parent. Children have

due process rights to be protected from arbitrary harm by

the government. The child’s right to have his best

interests decided by a court of law should not be inferior

to a legal father’s right to custody.

I wholeheartedly agree with the majority that the

record contains evidence that supports a finding that,

during the proceeding, the legal mother and the legal

father rebutted the presumption that the children were the

issue of their marriage. However, while I believe that

there is more to being a parent than mere biology, I also

believe that there is more to being a parent than the

rights conveyed by a marriage license. A narrow view of

standing grounded in neither statute nor court rule should

not defeat a meaningful examination of the best interests

of the children. Therefore, I respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

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