A “Mistake of Fact” Explained: Revocation of Paternity

When a child is born, or any time after birth, parents can choose to sign an Affidavit of Parentage (AOP) that legally establishes the father of the child and allows for information about the father to be added to the birth certificate. This is common in cases where parents aren’t married (as a husband would immediately be assumed to be the father under Michigan law). What if there’s a mistake that could impact custody and parenting time?

In this case, Michigan law allows for revocation of paternity, by which a legally established father that is not the biological father of a child can be stripped of his paternity and parenting rights. Of course, this is only applicable under certain circumstances, as a recent case in Michigan proves. What transpired in Kalin v. Fleming? How does it relate to revocation of paternity and mistake of fact, and what do unmarried parents need to know?

Kalin v. Fleming
The day after Fleming (the mother) gave birth to her child, she and Kalin signed an AOP stating that he was the father. Although Fleming later admitted the paternity was uncertain, she never told Kalin, allowing him to believe he was the father. When the couple later separated, Fleming denied Kalin parenting time and told him he was not the father, to which he responded with action in Family Court to get custody, parenting time, and child support.

Fleming then filed a motion for extension that would allow her to set aside the AOP under the rules outlined in the Revocation of Paternity Act. She claimed that a mistake of fact allowed for the revocation of paternity.

Revocation of Paternity
There are specific rules related to revocation of paternity. First and foremost, a motion for revocation of paternity must be filed within 1 year of the date the AOP was signed, or within 3 years of the child’s birth, whichever comes later. In the case of Kalin v. Fleming, both of these deadlines had passed. That said, the filing time may be extended in cases involving:

• Mistake of fact
• Newly discovered evidence that by due diligence could not have been found earlier
• Fraud
• Misrepresentation or misconduct
• or Duress

According to Fleming, the mistake of fact in this case was that Kalin didn’t know he was the father of the child, and this fact therefor gave her grounds to seek an extension for revocation of paternity. Kalin countered Fleming’s motion, saying that Fleming had no legal grounds to set aside the AOP.

The court ruled in Fleming’s favor initially, but a court of appeals reversed the decision, stating that while there was a mistake of fact on Kalin’s part, it did not meet the criteria for the person filing the motion for extension (Fleming) to prove that one of the five exceptions prevented her from timely action in revoking the AOP. After all, she knew that Kalin was not the father long before the deadline to file for revocation of paternity.

This case should serve as a lesson for unmarried parents in Michigan relying on an AOP to establish parental rights. Without further means to establish paternity (such as a blood test), there’s a danger of revocation of paternity. This is why it’s best to contact a qualified attorney from The Gucciardo Law Firm at 248-723-5190 if you’re an unmarried parent and/or paternity is in question.