Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  May 6, 2011                                                                        Robert P. Young, Jr.,
                                                                                               Chief Justice

  142333                                                                              Michael F. Cavanagh
                                                                                            Marilyn Kelly
                                                                                      Stephen J. Markman
                                                                                      Diane M. Hathaway
                                                                                          Mary Beth Kelly
  MARK EDWARD SNAY,                                                                       Brian K. Zahra,
          Plaintiff-Appellant,                                                                      Justices


  v                                                        SC: 142333
                                                           COA: 293618
                                                           Lapeer CC: 09-041541-DP
  DESTINY ROSE VEST,
           Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the November 18, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          MARILYN KELLY, J. (concurring).

         I concur in the Court’s order denying plaintiff’s application for leave to appeal. I
  write separately because I strongly disagree with the overly rigid standing threshold in
  the Paternity Act.1 I urge the Legislature to reconsider the act and to confer standing on
  fathers who can definitively prove their paternity.

                                      BACKGROUND

          Defendant Destiny Vest was married to Harold Vest at the time of the conception
  and birth of the child who is the subject of this appeal. However, it is undisputed that
  plaintiff is the child’s biological father. Plaintiff filed a complaint seeking sole physical
  custody of the child and joint legal custody with defendant. Plaintiff alleged that it was
  in the best interests of the child that he have physical custody.

         The circuit court initially entered an ex parte order awarding joint legal custody to
  the parties and sole physical custody to plaintiff. However, after a hearing, the court

  1
      MCL 722.711 et seq.
                                                                                           2

granted defendant’s motion for summary disposition and dismissed the case, concluding
that plaintiff lacked standing under the Paternity Act.

        Plaintiff appealed, and the Court of Appeals affirmed the decision. It agreed that
plaintiff lacked standing to seek custody of the child, but urged this Court to “revisit this
issue in the context of this case.”2 Plaintiff then sought leave to appeal in this Court.

                                THE NEED FOR CHANGE

        Plaintiff argues that he has standing to seek custody because he has been
determined to be the biological father of the child. I recognize that the Paternity Act does
not confer standing on a father or putative father unless the child satisfies the statutory
definition of “born out of wedlock.”3 I further recognize that the child in this case does
not meet that definition because defendant was married to Harold Vest at the time of the
conception and birth of the child. But I question the wisdom of refusing to allow a
proven biological father standing to adjudicate his rights with respect to his child.

      In his dissent in Girard v Wagenmaker,4 then-Chief Justice CAVANAGH noted the
grave policy concerns resulting from the standing requirements in the Paternity Act.
Rather than paraphrase his thoughtful concerns regarding the act, I adopt his analysis as
my own:

                This brings me to the policy concerns implicated by this case . . . .
        The Wagenmakers contend that it would be profoundly undesirable to
        permit a putative father legal standing to bring a paternity claim against the
        wishes of the mother and her husband, where the mother and husband
        maintain an intact marriage and choose to treat the child as their own. At
        first glance, there might appear to be substantial force to this argument,
        which relies not only on the principle of protecting the sanctity of the
        family, but on the emotional and psychological well-being of the child
        involved. It must be conceded that a case like this one raises a painful
        moral dilemma. For several reasons, however, I believe this broad policy
        argument must fail.

2
 Snay v Vest, unpublished opinion per curiam of the Court of Appeals, issued November
18, 2010 (Docket No. 293618), p 1 n 1.
3
 MCL 722.711(a) defines “child born out of wedlock” 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.”
4
    Girard v Wagenmaker, 437 Mich 231 (1991).
                                                                                     3


        First, and perhaps most important given the precept of judicial
restraint, a substantive policy question like this should be left to the
Legislature. As I have demonstrated above, the only reasonable reading of
the language of the Paternity Act, as previously interpreted by this Court
[in Syrkowski v Appleyard, 420 Mich 367 (1985)], compels the conclusion
that the Legislature has authorized a paternity action like that brought by
Girard in this case. If, on the other hand, the statutory language does not
permit this Court to avoid the moral and policy questions, I would conclude
that the balance of interests weighs in favor of permitting Girard’s claim. It
is more than a little hypocritical to contend, as do the Wagenmakers, that
denying standing to Girard is consistent with “the law’s repugnance to
adulterers.” The biological mother in this kind of situation is certainly no
less an “adulterer” than the biological father. 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.

       There is still a more basic pragmatic issue. Denying putative fathers
like Girard a legal forum in which to press their claims will not prevent
such claims from being made, quite possibly at times and in a manner far
less conducive to the psychological health and security of the child
involved. The law, after all, cannot sweep reality under the rug. Instead of
leaving such paternity disputes unresolved, to fester and rankle down
through the years, would it not be more desirable to give the parties their
day in court and settle the issue once and for all? If the concern is the
possibility of malicious or unfounded lawsuits, appropriate sanctions
already exist. Furthermore, the Wagenmakers’ concern that the mechanics
of the paternity inquiry would intrude unacceptably into their intimate
marital privacy is unfounded given the ease and reliability of modern
scientific paternity testing on the basis of blood samples.

                                   ***

       It cannot be emphasized too strongly that upholding Girard’s
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. But to deny Girard standing to bring his claim at the
very outset is inherently unjust. The fact that it might appear unlikely or
improbable that a given putative father might ultimately succeed on the
merits of his claim in no way justifies denying him his day in court to make
that claim. 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
                                                                                          4

         the standing of any such claimants. The merits of each case are most
         appropriately considered at the very court hearing which the putative father
         seeks. His minimal right to such a hearing—in elemental due process
         terms, “the opportunity to be heard ‘at a meaningful time and in a
         meaningful manner’”—is the only issue before this Court in this case.

                                          ***

                Taking the broadest view of the statutory scheme, it seems to me that
         there would be something oddly askew with a legal framework which
         recognized the standing of a husband seeking to disclaim paternity of his
         wife’s child, yet refused standing to a man seeking to claim paternity of
         such a child. There is a sadly negative cast to the entire law of paternity.
         The focus is almost always on the recalcitrant father, forced unwillingly
         into supporting a child he refuses to acknowledge. It is rarely on the out-
         of-wedlock father who willingly shoulders his paternal responsibilities and
         voluntarily seeks to establish a relationship with his child. This undertow
         of social assumptions has affected the constitutional case law of the United
         States Supreme Court, which has shown a solicitous concern for the due
         process rights of the unwilling father threatened with involuntary liability
         for child support, while turning a remarkably cold shoulder to the due
         process claims of willing fathers who wish to maintain a relationship with
         their children. This Court, however, need not and should not interpret
         Michigan’s Paternity Act in such a selective and negative manner.[5]

       Perpetuation of a rigid standing rule in the face of conclusive evidence of paternity
does not always serve the interests of children, putative parents, or the State of Michigan.
As this Court stated in Serafin v Serafin:

                 “If the function of a court is to find the truth of a matter so that
         justice might be done, then a rule which absolutely excludes the best
         possible evidence of a matter in issue rather than allow it to be weighed by
         the trier of fact must necessarily lead to injustice. Further, when a court
         voluntarily blindfolds itself to what every citizen can see, the public must
         justifiably question the administration of law to just that extent.”[6]




5
    Id. at 269-276 (citations and footnotes omitted).
6
 Serafin v Serafin, 401 Mich 629, 635-636 (1977), quoting Davis v Davis, 507 SW2d
841, 847 (Tex Civ App, 1974), rev’d on other grounds, 521 SW2d 603 (1975).
                                                                                                               5


       Given that the Court is bound by the definition of “born out of wedlock” in the
Paternity Act, I concur in the Court’s order denying plaintiff’s application for leave to
appeal. But I wish to point out the adverse policy consequences of the part of the
Paternity Act involved here. It raises an unyielding barrier to fathers and putative fathers
who seek to have their claims redressed by our courts. When a plaintiff, like Mr. Snay,
has presented conclusive evidence of paternity, the legal system should not turn a blind
eye to his claims.

       CAVANAGH, J. I would grant leave to appeal for the reasons stated in my dissent
in Girard v Wagenmaker, 437 Mich 231, 253-278 (1991) (CAVANAGH, J., dissenting).

       HATHAWAY, J., would grant leave to appeal.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 6, 2011                         _________________________________________
       p0503                                                                 Clerk
