STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5492

May 23, 1979

PATERNITY ACT:

Effect of marriage of man and woman involved in paternity action on order establishing paternity and requiring payment of support

ILLEGITIMATE CHILDREN:

Effect of marriage of man and woman involved in paternity action on order establishing paternity and requiring payment of support

FAMILY SUPPORT ACT:

Effect of marriage of man and woman involved in paternity action on order establishing paternity and requiring payment of support

The right of a child born out of wedlock to receive support, where the child's parents subsequently marry, may be enforced through proceedings in the appropriate circuit court pursuant to the Family Support Act. If a support order arising from a paternity proceeding is still outstanding, the circuit court issuing such order should be apprised of the marriage and given an opportunity to dismiss the paternity action as moot.

Honorable Richard D. Fessler

State Representative

The Capitol

Lansing, Michigan 48901

You have requested my opinion as to whether the subsequent marriage of a man and woman involved in a paternity action nullifies or renders unenforceable an order which had been entered establishing paternity and requiring payment of support.

The Paternity Act, 1956 PA 205, as amended, MCLA 722.711 et seq; MSA 25.491 et seq, and the case law pertaining to said act are silent on this question.

It has long been the rule in Michigan that a child born out of wedlock is legitimated by the subsequent marriage of the father and mother so as to allow said child to be considered an heir at law to the father's estate. In re Karch's Estate, 311 Mich 158; 18 NW2d 410 (1945). Further, in Easley v John Hancock Insurance Co, 403 Mich 521; ---- NW2d ---- (1978), the Michigan Supreme Court, relying on the United States Supreme Court's opinion in Trimble v Gordon, 430 US 762; 97 S Ct 1459; 52 L Ed 2d 31 (1977), held that it would deny equal protection of the laws not to allow an illegitimate child to share equally with a legitimate child in the proceeds of an insurance policy on their father's life even though the only evidence of a father-son relationship regarding the illegitimate child was an order of filiation.

The Family Support Act, 1966 PA 138, as amended, MCLA 552.451 et seq; MSA 25.222(1) et seq, provides a mechanism for circuit courts to enforce payment of money for support of mothers and minor children by husbands and fathers where, after their marriage, the father fails to provide necessary shelter, food, care, and clothing for his wife and children.

In the Family Support Act, supra, Sec. 1a, it is noted that an order of support may be sought under the act of '. . . legitimate, legitimated and lawfully adopted minor children.' As In re Karch's Estate, supra, points out, a child whose parents married after the child's parentage had been established in a paternity proceeding must be considered legitimated. Even if it were not required as a matter of equal protection of the laws, therefore, the Family Support Act, supra, itslef provides an enforceable remedy for such legitimated children.

Further support for the proposition that the inter-marriage of the parties to a paternity action legitimates the child born out of wedlock is found in the Revised Probate Code, 1978 PA 642, Sec. 111(2) and (7), MCLA 700.111(2) and (7); MSA 27.3178(111)(2) and (7), which state:

As the above statutory provision indicates, the intent of the legislature is to afford children born out of wedlock with 'the identical status, rights and duties of a child born in lawful wedlock effective from birth,' where the child's parents later marry each other.

To give effect to such legislative intent, it is necessary to first set aside any outstanding support order which was entered in the paternity action.

The Paternity Act, supra, has as its purpose, the provision of support to children born out of wedlock. ⁽¹⁾ The act details the procedure to be followed in paternity actions. The Paternity Act, supra, Sec. 7(b), mandates that when the circuit court enters an order of filiation against the father, '[t]he order . . . shall specify the sum to be paid weekly or otherwise, until the child reaches the age of 18. . . .'

In Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976), the Michigan Court of Appeals had under consideration the question of whether, on petition of the mother, the amount of support awarded in an order of filiation could be increased during the term of such order. The Court of Appeals considered Sec. 10 of the Paternity Act, supra, which provides:

In its opinion in Boyles v Brown, supra, the Court of Appeals held:

The Court of Appeals in Boyles v Brown, supra, reversed and remanded the matter to the trial court for an evidentiary hearing under the Paternity Act, supra, at which relevant changes in circumstances of both parties affecting support for their illegitimate child, which had been previously erroneously excluded, would be explored.

The judgment entered in a paternity proceeding will usually not be satisfied until the child who is the subject of such proceeding reaches age 18. However, if the man and woman involved in the proceeding marry, such an alteration in the circumstances underlying the original support order should be communicated to the circuit court by petition so that the court can dismiss the case as mooted by such marriage.

Therefore, it is my opinion that the right of a child born out of wedlock to receive support where the child's parents subsequently marry may be enforced through proceedings in the appropriate circuit court pursuant to the Family Support Act, supra. If a support order arising from a paternity proceeding is still outstanding, the circuit court issuing such order should be apprised of the marriage and given an opportunity to dismiss the paternity action.

Frank J. Kelley