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05/18/76 WINSETT v. DONALDSON

May 18, 1976

WINSETT
v.
DONALDSON



Appeal from Wayne, John D. O'Hair, J.

Bashara, P. J., and V. J. Brennan and T. M. Burns, JJ.

SYLLABUS BY THE COURT

1. Infants -- Paternity -- Courts -- Jurisdiction -- Statutes.

A circuit court does not have jurisdiction over a proceeding brought under the Paternity Act by an alleged natural father to have himself declared the father of a child, where the child's mother was legally married to another man at the time of conception and birth of the child, because the Paternity Act does not apply where a child was either conceived or born at a time when the child's mother was married (MCLA 722.711, 722.714; MSA 25.491, 25.494).

2. Infants -- Paternity -- Custody -- Courts -- Jurisdiction -- Statutes.

A plaintiff who alleges himself to be the natural father of a child born at a time when the mother was married to another man may bring his action to obtain a declaration that he is the father and to obtain custody of the child under the Child Custody Act; a circuit court may properly determine the child's lineage in the course of a custody dispute (MCLA 722.25; MSA 25.312[5]).

3. Pleading -- Affidavits -- Statements of Fact.

Statements of fact contained in affidavits which are not rebutted by the opposing party's affidavit or pleadings may be accepted as true by the trial court.

The opinion of the court was delivered by: Bashara

Petition by William Winsett to acknowledge his paternity of LaTonya Donaldson, a minor, as against the rights of Julia R. Donaldson and Carl Donaldson. Neither named defendant appeared, but the Michigan Department of Social Services intervened as defendant. Accelerated judgment for the Department of Social Services. Plaintiff appeals.

Plaintiff appeals from an order of the Wayne County Circuit Court granting intervenor's motion for accelerated judgment. Plaintiff sought a determination that he was the father of one LaTonya Donaldson. The trial court dismissed plaintiff's action for lack of jurisdiction.

The plaintiff had initially filed a pleading entitled "Petition of William Winsett to Acknowledge Paternity of a Minor". Julia and Carl Donaldson were named as defendants. Plaintiff alleged that LaTonya Donaldson was conceived and born to Julia Donaldson while she was living with him; that Julia Donaldson was married to another man; and that the plaintiff was unaware of the existence of a husband of Julia Donaldson until after the birth of the child.

The petition also stated that the child had been abandoned by her mother and had become a ward of the Wayne County Juvenile Court. Plaintiff indicated that he was seeking a formal determination of his paternity prior to taking further action to obtain custody of the child.

Neither defendant filed an appearance after service by publication. However, the Attorney General intervened on behalf of the Children's Institute of the Michigan Department of Social Services. The intervenor claimed that the court lacked jurisdiction over the subject matter of the action, because the mother was a married woman at the time of the conception and birth of the child. Plaintiff did not dispute that the mother was a married woman. He alleged that he had lived with Mrs. ...


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