President Deborah L. McNabb Kent County Courthouse 180 Ottawa, NW, Ste. 4400 Grand Rapids, 49503 (616) 632-5144 Vice President Jon T. Ferrier Kent County Courthouse 180 Ottawa, NW, Ste. 4400 Grand Rapids, 49503 (616) 632-5142 Executive Secretary Kenneth D. Randall 42nd Judicial Circuit Midland County 301 W. Main St. Midland, 48640-5183 (989) 832-6803 Recording Secretary Jean L. Dohanyos Oakland County Circuit Court 1200 N. Telegraph Rd., Dept. 452 Pontiac, 48341-0452 (248) 858-0033 Treasurer David T. Elias Macomb County Friend of the Court 40 N. Main, 5th Floor Mt. Clemens, 48043 (810) 469-5754 Immediate Past President Mark D. Sherbow Oakland County Friend of the Court P.O. Box 436012 1200 N. Telegraph Rd., Annex 11 Pontiac, 48341 (248) 975-4448 Board Members Kathleen Oemke Thomas G. Doetsch, Sr. Kathryne A. O'Grady Arthur R. Spears, Jr. Dennis M. Swain Past Presidents Wayne Kristal Jon T. Ferrier Ronald Foon Marie Johnson Hon. Linda Hallmark Wendelyn Machnik Karen Liwienski Vincent Welicka Philip Ingraham Zaira Maio Mark D. Sherbow

May 1, 2003 The Honorable James Koetje, State Representative N 1190 House Office Building 124 N. Capitol Lansing, MI 48909 RE: HB 4120 Dear Representative Koetje:          At our Board of Directors meeting last month, the Referees Association of Michigan (RAM) voted to oppose the passage of HB 4120 in its present form.                    There are many features of HB 4120 which RAM supports in concept, but our difficulties with HB 4120 flow mainly from subsection 7 (p. 2 of draft, lines 9-16), wherein the Court may terminate a man's child support obligation and vacate an order stating the man is a child's father, but may continue or modify a parenting time order. We strongly oppose this provision as it allows the court to extend or continue rights to non-parents without regard to the wishes of fit parent(s). This is arguably unconstitutional, under U.S. Supreme Court precedents, particularly under the recent case of Troxel v. Granville, where the Supreme Court held a Washington State third-party visitation statute unconstitutional as applied, in that the law required the court to give no special deference to the position of a fit parent in opposition to grandparent visitation (in that case's facts), and allowed a court to substitute its own judgment about a child's best interests, effectively overruling the fit parent's decision concerning visitation. Subsection 7 would appear to suffer from the same constitutional infirmities.                    In addition, if a man's identity as a father and his legal obligation to contribute in any way to the support of a child he had thought for a time was his is obliterated by the fact of paternity exclusion proven by testing, then the continuation of any relationship the child should have had with the man should be as purely voluntary and up to the fit parents, as their acceptance of continuing, voluntarily-paid support from the deceived dad. In sum, RAM does not believe it is constitutional or in the child's best interests to allow the court the authority to continue a parenting time right after a child support responsibility has been eliminated.                    Further, we do not believe that the portion of subsection 7 allowing the court to "retroactively correct" an arrearage which a deceived dad has accumulated by failure to pay support under a valid order is appropriate, and in effect rewards the man for disobeying the Court's order. The remedy is to file the kind of motion this bill would provide for, but subsection 7 should be deleted in its entirety.                    While HB 4120 would, if subsection 7 were deleted, provide a needed avenue of relief for paternity defendants and husbands who have been deceived as to their paternity, of the same sort as the relief currently provided to men under the Acknowledgement of Parentage Act, MCL 722.1011, RAM would favor a provision that required the motion to be filed within a reasonable time, say 6 months, of the man becoming aware of grounds to suspect that he might not be the father of a child. This will often involve the statement of the mother to the deceived dad that he is not (or may not be) the father of the child. In one recent case, upon medical testing showing that an acknowledged "father" did not produce sperm, and likely could not have produced sperm at any point in his life, the man promptly moved under the Acknowledgement of Parentage Act to have genetic testing performed. When that testing confirmed that the man was excluded from paternity, he successfully moved to rescind the acknowledgement and his responsibility under the support order. This is proper. What would be improper would be the man in the instant example sitting on the information that he could not likely have even produced sperm, only to spring that on the court and the mother and child(ren) at a time of his convenience -- paternity disestablishment by ambush, if you will.                    Concededly, the inclination is to extend scant sympathy to the deceiving mother in these cases, but it should be borne in mind that not all deceiving mothers are deceiving the "dads" intentionally, and not all "deceived dads" are deceived about the mother's sexual activities with other men around the time of conception. The point being, a man should be required to file for relief under your proposal within a reasonable time, say six months, of becoming aware of grounds to suspect he might not be the father.                    RAM is a Special Purpose Organization recognized by the State Bar of Michigan, founded in 1984. RAM represents over one hundred Circuit Court Referees who serve as judicial officers in the Family Division of the Circuit Court. Our members conduct hearings in domestic relations cases, juvenile/children's cases and personal protection order cases, and make recommended dispositions to the Circuit Court which become court orders unless objections are filed and the Court rejects the recommended disposition after a hearing is held.                    We would be happy to provide further mformation or assistance on this and other proposed legislation that affects the area of Family Law, and we thank you for your attention and consideration of our position on HB 4120.                                                       Sincerely,                                                       Kenneth D. Randall                                                       Executive Secretary                                                       Referees Association of Michigan pc: The Honorable Jim Howell,      House Judiciary Committee Chair