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Graham v. Foster

Court of Appeals of Michigan

June 16, 2015

SHAE KEVIN GRAHAM, Plaintiff-Appellee,
v.
SHAREA FOSTER, Defendant-Appellant

Oakland Circuit Court. LC No. 2013-808521-DP.

For SHAE KEVIN GRAHAM, Plaintiff-Appellee: DAVID MELTON, JR, DETROIT, MI.

For SHAREA FOSTER, Defendant-Appellant: TAMMY DANIELS, SOUTHFIELD, MI.

Before: CAVANAGH, P.J., and METER and SHAPIRO, JJ.

OPINION

Page 356

[311 Mich.App. 140] Patrick M. Meter, J.

In this action to revoke paternity, defendant appeals by leave granted a circuit court order denying her motion for summary disposition. We affirm the denial of summary disposition but conclude that defendant's husband, Christopher Foster (hereinafter " Foster" ), is a necessary party to plaintiff's lawsuit. We therefore remand this case for the addition of Foster as a defendant.

Defendant and Foster were married on September 18, 2004, and they continue to be married. In the summer of 2008, defendant and plaintiff engaged in an extramarital affair. Plaintiff alleged that on January 1, 2009, he and defendant conceived a child. Defendant's [311 Mich.App. 141] third child, Blake Foster, was born on September 23, 2009. Plaintiff filed an affidavit averring that he was present at Blake's birth and cut the umbilical cord during the delivery. Despite the foregoing, Foster was listed as the father on the child's birth certificate.

On September 22, 2010, plaintiff filed a complaint under the Paternity Act, MCL 722.711 et seq., in which he alleged that he was Blake's biological father. The circuit court dismissed the action, concluding that plaintiff lacked standing. The Legislature subsequently enacted the Revocation of Paternity Act (RPA), MCL 722.1431 et seq. The RPA, among other things, confers standing on an " alleged father" [1] to seek a determination that a child was born out of

Page 357

wedlock, even though the mother was married at the time of the conception or birth. MCL 722.1441(3); MCL 722.1433(e). On May 15, 2013, plaintiff filed a complaint under the RPA. Once again, plaintiff alleged that he was Blake's biological father. Plaintiff sought (1) an order determining his paternity of the child, (2) an order of filiation naming him as the child's father, (3) an order providing for joint legal and physical custody of the child, and (4) an order allowing reasonable parenting time. Only defendant was named as a defendant in the complaint.

In lieu of filing an answer, on June 14, 2013, defendant filed a motion for summary disposition under MCR 2.116(C)(8) and (10). She argued, in part, that plaintiff could not satisfy the factual requirements of MCL 722.1441(3)(a), which, in relevant part, states:

If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of [311 Mich.App. 142] establishing the child's paternity if an action is filed by ...

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