Crego v. ColemanCrego v. Coleman
Lead
In this case, we are asked to consider the constitutionality of a repealed section of the Paternity Act, MCL 722.713; MSA 25.493,
I. FACTUAL AND PROCEDURAL HISTORY
In October 1978, plaintiff filed a paternity action, alleging that defendant fathered plaintiff’s daughter who was bom in August 1978. In 1980, the parties reached a settlement agreement, and the complaint was dismissed without having determined the issue of paternity. Through the settlement agreement, defendant agreed to pay
In the early 1990s, plaintiff filed a motion to modify the support order, but the trial court dismissed the motion on the ground of res judicata. A divided panel of the Court of Appeals affirmed the dismissal, holding that the nonmodifiable settlement agreement was binding on the parties.
In 1995, however, in an unrelated case, the Court of Appeals reached the opposite conclusion when it held that MCL 722.713; MSA 25.493 violated the constitutional guarantees of equal protection because the statute authorized nonmodifiable child support awards in paternity actions, while child support awards in divorce actions always remain modifiable. Dones v Thomas,
Qn appeal, the Court of Appeals held that it would find the statute unconstitutional except that it was barred from doing so by MCR 7.215(H)(1), requiring the Court to follow Crego I, regardless of the Dones decision.
II. CONFLICTING STATUTORY CHILD SUPPORT PROVISIONS
The repealed section of the Paternity Act at issue here established a means of enforcing nonmodifiable child support agreements under certain circumstancеs:
(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of thechild shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.
(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child. [MCL 722.713; MSA 25.493 (emphasis added).]
It is important to recognize that the challenged statute was only relevant to nonmodifiable agreements where all the following elements were present: (1) a paternity action was filed; (2) the child’s mother and putative father
In the instant case, the parties expressly agreed to nonmodifiable support. Specifically, the stipulation provided that, “it is the intent of the parties that the attached order is not modifiable,” and further provided that, “this matter shall stand settled, discontinued, and dismissed” against defendant.
Plаintiff bases her constitutional challenge on the interplay between several statutes providing mechanisms for obtaining child support. Child support may be established through one of three categories of support orders: (1) those entered pursuant to a divorce action; (2) those entered pursuant to a paternity action in which paternity has been established (through one of a number of available methods); and (3) those, as here, entered pursuant to a stipulation to dismiss a paternity action before determining paternity.
In the first category, children bom or conceived during a marriage are deemed issue of the marriage,
In the second category, child support orders remain modifiable where a final paternity determination has been reached by way of a formal paternity action. Such a determination may be made through a variety of methods. In the first of two statutory methods, the Paternity Act, MCL 722.711 et seq.] MSA 25.491 et seq., allows modification in cases where an order of filiation has entered:
The court has continuing jurisdiction over proceedings brought under this act to increase or decrease the amount fixed by the order of filiation subject to section 7(3) or (4), and to provide for,change, and enforce provisions of the order relating to the custody or support of or parenting time with the child. [MCL 722.720(1); MSA 25.500(1).]
The second statutory category, also found in the Paternity Act, MCL 722.711 et seq.\ MSA 25.491 et seq., allows modification in cases where an acknowledgment of paternity has been obtained:
An acknowledgment signed under this act establishes paternity, and the acknowledgment may be the basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act ... . The child who is the subject of the acknowledgment shall bear the same relationship to the mother and the man signing as the father as a child bom or conceived during a marriage and shall have the identical status, rights, and duties of a child bom in lawful wedlock effective from birth. [MCL 722.1004; MSA 25.604.]
Except as otherwise provided by law, a mother and father who sign an acknowledgment that is filed as prescribed in section 5 are consenting to the general, personal jurisdiction of the courts of record of this state regarding the issues of the support, custody, and parenting time of the child. [MCL 722.1010; MSA 25.610.]
It is the third statutory category of establishing child support — through orders entered pursuant to a voluntary stipulation to dismiss a paternity action before determining paternity — that is at issue in the instant case. Only in this statutory category are non-modifiable support agreements permitted. It is important to note, however, that this third category of child support includes both modifiable and nonmodifiable support agreements. The statute does not require that such orders be nonmodifiable; it merely permits nonmodifiable orders, provided that the court determines that the parties’ agreement adequately provides for the child.
HI. EQUAL PROTECTION CLAUSE
The Equal Protection Clauses of the United States Constitution and the Michigan Constitution provide that no person shall be denied the equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. This Court has found Michigan’s equal protection provision coextensive with the Equal Protection Clause of the federal constitution. See, e.g., Frame v Nehls,
The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment. Miller v Johnson,
When a party raises a viable equal protection challenge, the court is required to apply one of three traditional levels of review, depending on the nature
A. WHERE RATIONAL BASIS APPLIES
Under rational-basis review, courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. Dandridge v Williams,
B. WHERE HEIGHTENED SCRUTINY APPLIES
The United States Supreme Court has recognized an intermediate level of review, between strict-scrutiny and rational-basis review, under which a challenged statutory classification will be upheld only if it is “substantially related to an important governmental objective.” Clark v Jeter,
IV. PROBLEMS IN CHARACTERIZATION
A. GENERAL PROBLEMS IN CHARACTERIZATION
Whether the Court uses a rational-basis or heightened scrutiny standard of review depends on the characterization of the statutorily created clаssifications. See, e.g., Mathews, supra at 504. Legislation, by its intrinsic nature, creates
This is because, in one sense, an equal protection claim simultaneously asserts that two persons are similarly situated, but also that, at another level, such persons are not similarly situated. The assertion that the two are similarly situated forms the predicate for the argument that, notwithstanding such similarity, they are being treated in a differing manner in some regard. The assertion that the two are not similarly situated is a function of the fact that there is some unshared characteristic that allegedly forms the basis for the differing treatment. Consequently, because an equal protection claim sometimes implicates this tension between the assertions of similarity and dissimilarity, its success may sometimes rise or fall on the basis of a court’s characterization of the classifications created by a particular statute.
B. SPECIFIC PROBLEMS IN CHARACTERIZATION
Not surprisingly, defendant characterizes this case as one in which different treatment has been properly afforded to children who were not, in fact, similarly situated. Rather, children whose paternity had been ascertained were treated differently than children whose paternity had not been ascertained. This is not an unreasonable characterization. The only children affected by the statute were those: (1) whose рutative father had not admitted paternity by signing an acknowledgment; (2) whose putative father had not been adjudicated the natural father through an order of filiation; and (3) whose mother had not been able to obtain, through stipulation, a modifiable support agreement.
The constitutional challenge here, from defendant’s perspective, is not unlike that raised in Frame v Nehls, supra. In Frame, a grandfather sought visitation rights with his illegitimate grandchild. Under the relevant statute, grandparents only had standing to seek visitation during the pendency of a “child custody dispute.” Because a paternity action was not within the statutory definition of a “child custody dispute,” the grandfather lacked standing, and he challenged the statute on equal protection grounds, claiming that it unconstitutionally differentiated between legitimate and illegitimate children.
As in the instant case, the Court of Appeals in Frame agreed that the challenged statute created classifications on the basis of illegitimacy, and it found the statute an unconstitutional denial of equal protection. Frame v Nehls,
Under this statute, there are a variety of situations under which illegitimate children receive the same right to fully modifiable support as children bоm during a marriage. First, where a putative father has signed an acknowledgment of paternity, any child support order entered regarding the child is fully modifiable, because that child was, and is, accorded the “identical status, rights, and duties of a child bom in lawful wedlock.” MCL 722.1004; MSA 25.604. Second, where a putative father has been adjudicated the natural father by a circuit court, and an order of filiation has been entered, any child support order entered regarding that child was, and is, modifiable under MCL 722.720; MSA 25.500. Finally, where the parties to a paternity action have reached an agreement regarding child support, that agreement is modifiable as long as the support order includes language allowing modification. Consequently, it is not unreasonable to conclude that the statute has not created a classification on the basis of illegitimacy, but rather has created a classification on the basis of whether paternity had been legally determined. This is a classification that distinguishes between categories of illegitimate children, not between the categories of illegitimate and legitimate children. Under this interpretation, the statute should be upheld as long as it is rationally related to a permissible legislative objective.
The dissent concludes that “[i]t is unreasonable to find that the statute did anything except distinguish the treatment of children on the basis of legitimacy.” Post at 284 (Kelly, J., dissenting); see also post at 293-294 (Weaver, C.J., dissenting). The dissenting justices reach this conclusion because, “illegitimate children, and they alone, received disparate treatment.” Post at 284 (Kelly, J., dissenting); see also post at 294 (Weaver, C.J., dissenting). However, the facts in the instant cаse are not unlike the facts in Geduldig v Aiello, for example, where women, and they alone, were denied certain disability insurance benefits because the policy excluded benefits for pregnancy.
While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification .... The [insurance] program divides potential recipients into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes. [Id. at 496, n 20.]
Likewise, “[w]hile it is true” that only illegitimate children face the risk of being unable to determine paternity with legal certainty, “it does not follow that every
Plaintiff, like the dissents, and also not surprisingly, characterizes the challenged statute as one creating a statutory classification on the basis of illegitimacy. And although we could reasonably conclude that the statute merely differentiated on the basis of whether paternity had been ascertained, we also acknowledge that plaintiff’s characterization of the statute is not unreasonable. First and foremost is our acknowledgment that the statute, where it applies, only affects illegitimate children. There is no apparent set of circumstances under which a legitimate child would be the object of an enforceable, nonmodifiable support agreement.
We find it noteworthy that the Paternity Act itself, on its face, unquestionably differentiates between illegitimate and legitimate children. Indeed, it is an act created solely to apply to illegitimate children, to afford those children an opportunity to obtain child support that has always been available to legitimate children. Yet, surely plaintiff would not argue that the act itself is violative of equal protection merely because it recognizes the unique circumstances of the illegitimate child. But for this act, illegitimate children had no clearly enforceable means of obtaining support from their fathers. The individual provision in controversy is merely one specific element of the act, and that provision, like the overall act itself, advances the underlying goal of providing support to children who might otherwise be left without that support.
The United States Supreme Court has repeatedly examined laws differentiating on the basis of illegitimacy. For example, in Mills and Clark, supra, the Court examined Texas and Pennsylvania laws limiting the period during which illegitimate children could establish paternity. The Texas statute required that paternity actions be filed within one year after the illegitimate child’s birth, and the Pennsylvania statute required that paternity actions be filed within six years after the illegitimate child’s birth. As in the instant case, the challenged statutes affected only illegitimate children. However, also similar to the instant case, the challenged Texas and Pennsylvania statutes ultimately only affected a subclassification of illegitimate children — those who failed to establish paternity within the statutory period of limitations.
V. RESOLVING the present case
A. RATIONAL BASIS SATISFIED
The plaintiff does not claim that the statute in question is unconstitutional on its face. Consequently, the claim must fail unless the statute’s application renders it unconstitutional. When faced with a claim that application of a statute renders it unconstitutional, the Court must analyze the statute “as applied” to the particular case. See, e.g., People v Lino,
The underlying purpose of the Paternity Act is to ensure that minor children bom outside a marriage are provided with support and education. Whybra v Gustafson,
In the context of a law created to secure child support from fathers, there is a core distinction between knowing who the child’s father is and not knowing who the child’s father is. Absent the disputed law, children whose paternity could not be determined had no means of obtaining support
As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lаwsuit entered into their support agreement. See Shapiro, Reifler & Psome, The DNA paternity test: Legislating the future paternity action, 7 J Law & Health 1, 29 (1992-93) (current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child’s access to child support. The first reported results of modem DNA paternity testing did not occur until 1985. See Blakesley, Scientific testing and proof of paternity: Some controversy and key issues for family law counsel, 57 La L R 379, 382 (1997) (“In fact, since its first reported results in 1985, DNA matching has progressed to ‘general acceptance in less than a decade’ ”). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. See Illinois Family Study Commission, Report and Recommendations to the 76th General Assembly (1969) at 55 (finding that paternity actions at the time were often rife with coercion, corruption and perjury). Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child’s biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man — the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable to meet her burden of proof. The procedure established by the Paternity Act provided a voluntary and additional alternative to the often uncertain paternity suit process by which a mother could obtain support for her illegitimate child.
In light of the pre-DNA proof problems associated with proving paternity, the availability of nonmodifiable child support specified by the Paternity Act promotes the principal purpose of the act, i.e., to ensure that minor children bom outside a marriage are provided with support and education. Whybra, supra. The statute in question takes cognizance of perhaps the central distinction between illegitimate and legitimate children — the formers’ reduced lack of certainty regarding their paternity. By recognizing this reality, and seeking to ameliorate its consequences, the statute, as applied, is rationally related to the state’s interest in ensuring that illegitimate children are provided support. For these reasons, we conclude that the disputed statute satisfies a rational-basis standard of review.
In Gomez, supra at 538, the United States Supreme Court acknowledged that treating illegitimate children differently might be appropriate under some circumstances, due to the “lurking problems with respect to proof of paternity.” See also Clark, supra at 461. The very existence of an “intermediate” level of review, i.e., a standard of review more respectful of legislative distinctions than with regard to the most highly suspect categories of race, nationality, and ethnicity, represents an implicit acknowledgment that there are some immutable distinctions between various classes of persons, and that it is sometimes within the Legislature’s prerogative to address those distinctions, even where the result is dissimilarity of treatment. For example, legislation addressing some aspect of pregnancy and childbirth does not violate equal protection merely because it differentiates on the basis of gender. Geduldig, supra at 496, n 20. Rather, such legislation would be in direct response to an immutable difference between men and women — the biological ability to bear children. See also Rostker v Goldberg,
Providing financial support for children is a permissible, important, and even compelling governmental interest. A core distinction between legitimate and illegitimate children is the difficulty of determining paternity of the latter with the same level of certainty that paternity can be ascertained with respect to the former. And where paternity is uncertain — again, one of the immutable distinctions between legitimate and illegitimate children — providing an alternative means of obtaining child support to mothers who may not otherwise be able to prove paternity is substantially related to the goal of providing children with support. This is particularly true with respect to the instant case, where the parties entered into their agreement at a time in which plaintiff faced significant obstacles to overcoming defendant’s claim that he was not the child’s father. The lack of modem DNA testing when these parties entered their settlement underscores that the statute, as applied in this case, did not violate the constitutional guarantees of equal protection. See, e.g., Lino, supra at 570-571.
The possibility of nonmodifiable child support held out by MCL 722.713; MSA 25.493 provided an incentive for a putative father of an illegitimate child not to dispute paternity. This furthered the important governmental objective of ensuring financial support for children who otherwise may have gone without any form of “paternal” child support.
Where the statute of limitations in Clark, according to the Supreme Court, might prevent a mother from bringing a support claim on behalf of the nonmarital child because she might not act to protect the child’s interest in a timely manner, the settlement provision of the Wisconsin Statutes at issue in this case encourages her to do so. [Id. at 578 (Callow, J., dissenting).]
Likewise, MCL 722.713; MSA 25.493 did not operate to “prevent a mother from bringing a support claim on behalf of [her] nonmaritai child.” Rather, it operated as an incentive to those mothers who might have otherwise been reluctant or unable to invoke the paternity process in the face of highly uncertain prospects. Thus, the Wisconsin statute, and the statute before us, operated, not as a burden, as suggested by Justice Kelly, post at 287, n 5 (Kelly, J, dissenting), but as a benefit.
Even presuming, however, that Gerhardt was correctly decided, that case is clearly distinguishable on its facts. First, the statute challenged in Wisconsin allowed nonmodifiable settlement agreements in all paternity actions, regardless of whether paternity had been admitted or ascertained by the court.
It is true that, in this case, MCL 722.713; MSA 25.493 was given continued application even after the advent of modem dna testing.
It is critical to recognize that this is not a statute designed to impose burdens upon illegitimate children for the behavior of their parents, or even to discourage sexual relations outside the institution of marriage or otherwise influence societal norms. Rather, it is designed to address paternity proof problems in the support context — an important governmental interest, repeatedly sanctioned by the United States Supreme Court — in order to afford the mother of an illegitimate child the opportunity to bind the child’s putative father to a support order, without a final determination of paternity, and thereby to afford enhanced opportunities for the support of illegitimate children. We do not conclude, as Justice Kelly contends, that
Nor can we altogether ignore the fact that the instant statute does not compеl mothers to agree to nonmodifiable support. Rather than denying illegitimate children the right of support from their fathers, the statute provides illegitimate children, through their mothers, a voluntary and additional optional mechanism for obtaining support — a compromise in exchange for the significant risk that the mother would lose the case and the child would receive no support whatsoever. Nonmodifiable support agreements, along with modifiable support agreements, are available, not required, under the statute, and are only enforceable where the court has otherwise determined that the agreements provide sufficient support for the child. Again, this is not a case in which the state “posit[ed] a judicially enforceable right of children to support from their natural fathers,” but denied that same right to illegitimate children. Mills, supra at 92, citing Gomez, supra.
The dissenting opinions conclude that the statute, rather than providing an additional opportunity for illegitimate children to obtain support, actually operates to their detriment because it precludes modification of child support. However, this conclusion not only fails to take into consideration the practical problems confronting the mother of the illegitimate child in proving paternity before the advent of dna testing, but also fails to consider that modification of child support is based on more than merely the child’s needs. In determining whether modification is warranted, the courts are required to take into consideration, not only the child’s needs, but also the father’s financial circumstances. Although recipients of nonmodifiable support may be precluded from obtaining an increase in support, they are also precluded from suffering a reduction in support. Even more consequentially, of course, absent the statute, the recipients of nonmodifiable support are “precluded” from being denied support altogether, such as where the mother was unable to overcome problems in proving paternity that existed before dna testing. Moreover, putative fathers who agreed to nonmodifiable support are precluded from taking advantage of advances in technology to disprove paternity, just as the mothers are to prove paternity.
Because the statute is substantially and directly related to the general goal of obtaining child support for illegitimate children, and because it is substantially and directly related to the state’s legitimate concern regarding proof problems in the child support context, we find that it is not an unconstitutional denial of equal protection under the law, regardless of whether the rational basis or intermediate standards of review are emplоyed.
VI. CONCLUSION
There are alternative ways of characterizing the classifications created by the instant statutory provision. One reasonable characterization is that this statute distinguishes between children whose paternity has not been ascertained and children whose paternity has been ascertained. Alternatively, the classifications created by the challenged statute could reasonably be characterized as being based on illegitimacy because the statute only affects children bom out of wedlock.
Viewing the challenged statute as one which merely differentiates on the basis of whether paternity has been ascertained, we find that the statute is rationally related to the legitimate state interest of ensuring that minor children bom out of wedlock are provided with support and education. Moreover, viewing the challenged statute as one that distinguishes children on the basis of illegitimacy, we find that the statute’s purpose of providing support for illegitimate children is an important, and even compelling, state interest and that the challenged statute, as applied, substantially and directly advances this important interest by providing an avenue to avoid problems associated with proving paternity, yet still provide support for the child.
Therefore, we find that, regardless of this Court’s characterization of the classifications created by the challenged statute, the statute does not violate the constitutional guarantees of equal protection of the law. We reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
The Legislature repealed the statute effective June 1, 1997, after a Court of Appeals decision finding the statute unconstitutional. Dones v Thomas,
This order was not signed by the parties, nor did their attorneys approve the order as to form or substance. We express no opinion regarding the effect of this circumstance.
MCR 7.215(H)(1) requires that, “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.”
Although the statute referred to an agreement reached with “the father” concerning child support, that language should be read to mean “putative father.” The disputed provision only applied when a paternity suit had been filed, but a paternity determination had not yet been made. Common sense requires us to read this language to mean the “putative father,” as no determination of paternity has been made when a paternity complaint is initially filed. Additionally, the statute appears to use the term “putative father” interchangeably with “father.”
This presumption is rebuttable. The Paternity Act is applicable where the presumption has been successfully rebutted.
In Feeney, supra, for example, the Supreme Court faced the difficulties in thе characterization of a statute when female plaintiffs challenged a law granting veterans preferences with regard to state civil service hiring decisions.
A classification based on whether paternity has been determined neither implicates a fundamental right or an inherently suspect class, nor has it been recognized by this Court or the United States Supreme Court as deserving of any heightened standard of review. Moreover, the parties have provided no reason we should now create a new category of suspect class.
Superseded by statute as noted in Newport News Shipbuilding & Dry Dock Co v EEOC,
We emphasize again that we do not necessarily disagree with the dissents that the statute may also reasonably be characterized as one that creates classifications on the basis of illegitimacy. Rather, we merely acknowledge that, just as it is not unreasonable to characterize a statute relating to pregnancy in more than one manner, it is not unreasonable to characterize the statute here in more than one manner. Because we find that the statute, as applied, was constitutional under either characterization, we need not decide which of these characterizations is more appropriate.
The Paternity Act applies to children bom during wedlock who are later deemed not to be the issue of the marriage. Thus, these children would be classified also as “illegitimate.” MCL 722.713; MSA 25.493.
Neither Mills nor Clark requires us to reach the conclusion that the statute challenged here created classifications on the basis of illegitimacy; in neither of those cases did the Court address the threshold question whether the challenged statutes actually created classifications on the basis of legitimacy. The dissent states, “I conclude that the [Clark] Court did find that the statute created a classification on the basis of illegitimacy.” Post at 285-286, n 4 (Kelly, J., dissenting). However, Justice Kelly reaches this conclusion, not because the Court expressly decided that the statute created classifications on the basis of illegitimacy, but rather because the Court examined the statute under intermediate scrutiny. We find the dissenter’s analysis flawed. In both Mills and Clark, the Supreme Court was examining statutory periods of limitation applicable to all illegitimate children. Unlike the statute before us, the statutes challenged in Mills and Clark imposed a requirement on all illegitimate children — either ascertain paternity within the allotted time frame or be forever precluded from access to child support. So even though we conclude, for argument’s sake, that the statutes in Mills and Clark, as applied, could be characterized as creating classifications either on the basis of illegitimacy or on the basis of whether paternity had been determined, there are significant differences between those cases and the instant case that could lead the same court to opposite results. Specifically, the statutes challenged in Mitts and Clark created a mandatory prerequisite to child support for all illegitimate children — prove paternity within the period of limitation. By contrast, the instant statute created options — prove paternity, obtain a nonmodifiable support agreement, or even obtain a modifiable support agreement. Consequently, even if we were to agree that the Supreme Court reached a decision that it did not expressly address, and even if we were to agree that such implicit decision making was binding on this Cotut, Mills and Clark do not require a conclusion that the challenged statute creates an illegitimacy-based classification; those cases are readily distinguishable from the instant case on their facts.
Even more importantly, the Clark Court was careful to point out that statutory classifications based on illegitimacy designed to punish the conduct of parents were different than statutory classifications based on illegitimacy designed to address paternity proof problems in the support context. Clark, supra at 461. The disputed statute here, to the extent that it treated illegitimate children differently than legitimate children, addressed the latter issue. That is, the challenged statute provided an alternative means of obtaining support for a child where paternity was uncertain.
Even recognizing that dna testing can conclusively establish paternity, and that the unreliability of testing is no longer the obstacle that it once was in paternity suits, this does not altogether eliminate “proof” problems in the context of paternity suits. Proving paternity involves not only the technical and scientific elements of establishing a genetic relationship, but also a variety of other legal and practical burdens, including the necessity of identifying and locating the putative father, the need to obtain and enforce court orders requiring paternity testing, the emotional and psychological burdens associated with trial, the inevitable uncertainties of the legal process, and, while perhaps increasingly remote, problems associated with obtaining reliable test results. Each of these steps to proving paternity can involve significant resources, in terms of time, effort, and money. Moreover, there may conceivably be circumstances in which ascertaining paternity through the legal process may not always be in the child’s own best interest, even where such paternity could be proven conclusively from a scientific standpoint.
Justice Kelly compares the instant case to Evink v Evink,
“If the defendant is found the father of the child, or admits the truth of the allegation, or enters into a settlement agreement, he shall be adjudged to be the father of such child, unless paternity is denied in such settlement agreement, . . . .” Madison General Hosp v Haack,
St 1967, § 52.38 provided for modification of settlement agreements entered pursuant to St 1975, § 52.37 only if the father (or putative father) failed to comply with the terms of the settlement, or where the settlement agreement “providing for the monthly support of a child bom out of wedlock has been dockеted or filed . . . .” Gerhardt, supra at 573, quoting St 1967, § 52.38.
Justice Kelly also cites Dep’t of Public Aid ex rel Cox v Miller, 146 Ill 2d 399;
For purposes of the instant case, we need not decide whether MCL 722.713; MSA 25.493, had it not been repealed, would remain constitutional today under intermediate scrutiny.
Justice Kelly finds this statement unpersuasive because of the judiciary’s underlying goal of “ascertaining the truth.” While this is true, the Legislature, in its enactment of the law, also has other objectives, in particular ensuring that illegitimate children are supported. At the time the instant agreement was entered into, the judicial system was less able to ascertain the truth concerning matters of paternity than it might be today. The mothers who entered into the agreements provided for by MCL 722.713; MSA 25.493 accepted nonmodifiable support to avoid the risk of receiving no child support whatsoever, in the event of their inability to convince the court that the putative father was, in fact, the biological father. Moreover, they avoided the risk of receiving a reduction in child support in the event that the child’s needs and the parties’ finаncial situation warranted such reduction, and they also avoided the risk that the putative father could, with advances in technology, eliminate child support altogether. Similarly, the putative fathers agreed to nonmodifiable support to avoid the risk of the court determining — perhaps incorrectly, and certainly not with scientific certainty — that they were the biological fathers. The goal of ascertaining the truth is not compromised when parties, recognizing the strengths and weaknesses of the proofs available in their situation, agree to make concessions so that each might avoid unnecessary risks. Here, the Legislature has allowed, and the parties have agreed, that a given child should receive child support from the putative father even without judicial ascertainment of the truth particularly where, as here, the judiciary lacked the means by which to ascertain this with any genuine degree of certainty.
Dissenting Opinion
(dissenting). The Paternity Act, before being amended, impermissibly discriminated against illegitimate children by denying them the opportunity accorded legitimate children for modification of agreements providing for their support.
a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.
b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child. [Emphasis added.]
A
Plaintiff brought an equal protection challenge to § 3. As the majority has indicated, any one of three different standards of review applies to equal protection challenges, depending on the nature of the alleged classification. Ante, p 259.
I disagree with the majority’s holding that it is equally reasonable to apply the rational basis standard of review to § 3 as to apply an intermediate or heightened scrutiny standard. Ante, p 264. Intermediate or heightened scrutiny applies to claims of disparate treatment based on the legitimacy or illegitimacy of a person. Mills v Habluetzel,
The majority states that one could reasonably characterize § 3 as treating children differently on the basis of whether paternity has been established. Ante, p 266. That view focuses on the fact that illegitimate children whose paternity has been established are not affected by the statute. Then, it supports a rational basis standard of review, because a classification based on paternity invokes neither intermediate nor strict scrutiny. See Plyler v Doe,
The majority’s view is flawed. It is unreasonable to find that the statute did anything except distinguish the treatment of children on the basis of legitimacy. Although not all illegitimate children received disparate treatment under § 3, the dominant reality is that illegitimate children, and they alone, received disparate treatment. The majority acknowledges that “[t]here is no apparent set of circumstances under which a legitimate child would be the object of an enforceable, nonmodifiable support agreement.” Ante, p 266.
The United States Supreme Court has held intermediate or heightened scrutiny to apply under similar circumstances. Clark v Jeter,
In contrast, legitimate children could seek support from their parents at any time. Id. The statute did not affect all illegitimate children by blocking their attempts to obtain support from their fathers. It affected only those illegitimate children who had not established paternity within six years of birth.
“First, the period for obtaining support . . . must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims." [Clark, supra at 462, quoting Mills, supra at 99-100 (emphasis added).]
The Court held that the statute was unconstitutional on the basis that it was not substantially related to an important state interest. Id. at 464.
I reach the same conclusion as did the United States Supreme Court in Clark. Even though § 3 did not include every illegitimate child, intermediate scrutiny must apply where the statute affected any child’s right to receive parental support on the basis of illegitimacy. Accordingly, intermediate or heightened scrutiny should be the only standard used in considering the constitutionality of § 3. Clark, supra at 461.
B
In order to survive intermediate scrutiny, a statute that results in the treatment complained of must be “substantially related to an important governmental objective.” Clark, supra at 461. The majority attempts to show that, even when intermediate scrutiny is applied, § 3 passes constitutional muster. Ante, p 281. It relates the important government objective of § 3
to address paternity proof problems in the support context ... in order to afford the mother of an illegitimate child the opportunity to bind the child’s putative father to a support order, without a final determination of paternity, and thereby to afford enhanced opportunities for the support of illegitimate children. [Ante, p 278.]
I recognize the importance of the state’s interest in enhancing the opportunity for illegitimate children to obtain support from their fathers. However, I disagree with the majority that § 3 is substantially related to that purpose.
While the Supreme Court in Clark did not rest its decision on such grounds, it recognized that the need for child support changes over time.
A mother might realize only belatedly “a loss of income attributable to the need to care for the child,” Pickett, supra [p 12]. Furthermore, financial difficulties are likely to increase as the child matures and incurs expenses for clothing, school, and medical care. . . . Thus it is questionable whether a State acts reasonably when it requires most paternity and support actions to be brought within six years of an illegitimate child’s birth. [Clark, supra at 463-464.]
How much more unreasonable is it for a state to preclude any modifications to support agreements entered into shortly after a child’s birth in light of those same factors? The Wisconsin Supreme Court answered that question when it decided the case of Gerhardt, supra, on remand from the United States Supreme Court for reconsideration in light of Clark.
In Gerhardt, the Wisconsin Supreme Court considered a statutory provision that authorized lump-sum payments to encourage the settlement of paternity cases. The provision forbade the revision or alteration of such settlements, unless the father failed to comply with their terms. Gerhardt, supra at 571.
Because marital children are not precluded from seeking additional child support notwithstanding a prior court order setting the amount of support, we conclude that prohibiting nonmarital children involved in lump-sum settlement agreements from seeking additional support amounts to a denial of equal protection. [Id. at 565.]
In Gerhardt, the defendant argued, as the majority concludes here, that the statutory provision gives illegitimate children an additional option in the form of a lump-sum settlement provision. Id. at 571; ante, p 279. The Gerhardt court, however, recognized the error in that argument.
[I]t is an option that has in reality worked to the detriment of many nonmarital children. It is, at best, an illusory benefit amounting to no benefit at all. It is, in reality, an additional burden. Similar to the procedural bars invalidated in the Clark line of cases, the lump-sum settlement provision deprives certain nonmarital children the opportunity to obtain adequate support. Although Clark and the cases cited therein deal with statutory limitation bars to the filing of actions, the bar to seeking additional child support that results from a iump:sum agreement works in precisely the same manner. Regardless of the label attached to the statutory bar, the result is the same. The nonmarital child, unlike the marital child, is barred from seeking additional support, regardless of need.That is hardly fair to the nonmarital child, much less constitutional. That is what the United States Supreme Court recognized in remanding this action, and that is what we recognize today. [Id. at 571-572 (emphasis added).][ 8 ]
I agree with the Wisconsin Supreme Court that statutes such as § 3 violate an illegitimate child’s right to equal protection of the law. Similar to the Wisconsin statute, § 3 actually limited the opportunities for illegitimate children to receive support from their putative fathers. It did so by foreclosing any opportunity for support orders to be modified beyond what was agreed to under conditions very likely unfavorable to both mother and child.
In a somewhat analogous situation, our Court of Appeals declared that a noncustodial
To accept defendant’s position would be to allow a parent to voluntarily release parental rights in order to escape the child support obligation where the child remains in the custody of the other biological parent. Such a result is not supported by statute, case law, or sound public policy. [Id. at 176.]
CONCLUSION
In this case, § 3 of the Paternity Act presented a father with the same opportunity, that of evading his child support obligation, as was rejected by the Court of Appeals in Evink. The act allowed a father to voluntarily enter into a child support agreement that the mother could not modify, even if the child’s needs increased. The act allowed a father to escape his responsibility to provide for his child, and the child was deprived of that to which it was entitled.
Accordingly, I conclude that § 3 violated the right of illegitimate children to equal protection under the law. In so doing, I align myself with the position of three different panels of the Court of Appeals,
MCL 722.713; MSA 25.493 was part of the Paternity Act, MCL 722.711 et seq.-, MSA 25.491 et seq. It was repealed by the Legislature, effective June 1, 1997, after the Court of Appeals declared it unconstitutional in Dones v Thomas,
I do not treat the arguments concerning retroactivity, because that issue was not considered by the Court of Appeals majority in this case.
The Paternity Act’s description stated that its provisions only apply to illegitimate children: “An act to confer upon circuit courts jurisdiction over proceedings to compel and provide support of children bom out of wedlock . . . .”
The majority states that, in Clark, the Court never determined whether the challenged statute actually created a classification on the basis of illegitimacy. Ante, p 268, n 11. It fails to recognize that there was no other issue in Clark that would have compelled the Court to apply the intermediate scrutiny standard of review. Thus, I conclude that the Court did find that the statute created a classification on the basis of illegitimacy.
The majority quotes from Geduldig v Aiello,
The United States Supreme Court, in affirming the Sixth Circuit decision in Satty, made the distinction between Geduldig and this case even more clear:
Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in [General Electric Co v Gilbert,429 US 125 ;97 S Ct 401 ;50 L Ed 2d 343 (1976) (based on Geduldig)], that [the statute] did not require that greater economic benefits be paid to one sex or the other “because of their differing roles in the ‘scheme of human existence,’ ”429 US 139 , n 17. But that holding does not allow us to read [the statute] to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role. [Nashville Gas Co v Satty,434 US 136 , 142;98 S Ct 347 ;54 L Ed 2d 356 (1977).]
Similarly, here, § 3 is not a statute that results in an underinclusive offering of insurance or social program benefits. Rather, § 3 imposes a burden on illegitimate children and their mothers by foreclosing any opportunity to modify child support agreements. See Gerhardt, supra at 572.
The remand order appears at: Gerhardt v Estate of Moore,
The Court stated the issue as follows: “[W]hether a statutory provision denying nonmarital children involved in lump sum child support settlements the ability to seek additional support from the father, a right not denied marital children, amounts to a denial of the equаl protection of the law.” Id. at 735.
The Wisconsin Supreme Court is not alone in its conclusion. A New York federal district court believed that a New York appellate court would strike down a substantially similar New York statute on the basis of Clark or construe the statute so that it would permit an illegitimate child to seek modification of a support agreement. Williams, supra at 463, n 5.
The Illinois Supreme Court, on the basis of Clark and Gerhardt, took the second approach. In Dep’t of Public Aid ex rel Cox v Miller, 146 Ill 2d 399, 408-410;
The majority attempts to discredit my citation to Cox by identifying it as dicta and trying to distinguish the instant case from it. See ante, pp 276-277, n 15. In Cox, thе statute did not allow modification of child support agreements until the court interpreted it to do so. That was in the face of a constitutional challenge on the basis of Clark and Gerhardt. Thus, the case is similar to the instant case, and its discussion of Clark and Gerhardt were essential to its resolution.
The United States Supreme Court identified the difficult situation that a mother faces when deciding whether to file a paternity suit.
“It requires little experience to appreciate the obstacles to such suits that confront unwed mothers during the child’s first year. Financial difficulties caused by child-birth expenses or a birth-related loss of income, continuing affection for the child’s father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child all encumber a mother’s filing of a paternity suit . . . .” [Mills, supra at 103.]
Those factors are present when an unwed mother must decide, shortly after her child’s birth, whether to accept a settlement from the putative father. How could she be certain of the support needs of her and her child for the next eighteen years? See Cox, n 8 supra at 407. It is readily apparent that, under such circumstances, a mother and child may not receive the “enhanced opportunities” that the majority asserts § 3 provides to them. See ante, p 278.
The majority fails to give appropriate weight to the fact that settlement agreements result in a burden on the mother and the child when they provide inadequate child support. See ante, p 275.
In addition, the majority attempts to draw a distinction between this case and Gerhardt because the statute in Gerhardt allowed nonmodifiаble child support agreements in all paternity actions. Also, in Gerhardt, there was an admission of paternity. Id. Each is a distinction without a difference. The fact that the statute in Gerhardt applied to all paternity actions does not diminish the fact that both it and § 3 had disparate effects on illegitimate children. There is, as the majority asserts, a clear relationship in Michigan between our statute and paternity proof problems. However, it is also true that § 3 discriminates against illegitimate children in the same manner as the statute at issue in Gerhardt.
Neither is it of any significance that there was an admission of paternity in Gerhardt. That fact was irrelevant to the court’s determination that the statute was not substantially related to an important government objective. Gerhardt, supra at 574; see also Coa;, supra at 408. One would expect that, had paternity not been admitted or established in Gerhardt, as it has not been here, the Gerhardt court would have reached the same conclusion.
In an effort to justify the statute, the majority reaches to find a benefit in the fact that “putative fathers who agreed to nonmodifiable support are precluded from taking advantage of advances in technology to disprove paternity, just as the mothers are to prove paternity.” Ante, p 280.1 fail to see how that is a benefit, because one of our major goals is to ascertain the truth. The state clearly does not have a substantial state interest in furthering falsehood and avoiding the truth. Although the majority names additional benefits that the statute provides, none of them outweigh the substantial interest our state has in ensuring that our youngsters receive adequate support throughout childhood.
Contrary to the assertion by the majority, Evink illustrates precisely why we should not allow illegitimate children to be burdened by nonmodifiable child support agreements. See ante, p 274, n 13. The majority fails to acknowledge that a putative father may very well know that he is the father of a child. However, he may be able to profit from the difficult situation the mother faces to procure a settlement he finds favorable. The majority identifies the statute as providing an illegitimate child with an opportunity to obtain child support from someone who might not otherwise provide it. However, it also allows someone who might otherwise have been responsible for adequate child support to avoid that obligation.
See Dones, n 1 supra; Crego v Coleman,
Cox, n 8 supra.
See Gerhardt, supra.
Dissenting Opinion
I respectfully dissent from the majority’s conclusion that MCL 722.713; MSA 25.493 did not violate equal protection. I believe that the statute creates a classification based on illegitimacy and that the statute cannot withstand the heightened scrutiny applied to such a classification. Therefore, I would affirm the Court of Appeals.
Because there are situations in which illegitimate children receive a right to modifiable support, the majority opines that this statute does not create a classification based on illegitimacy, but one based on whether “paternity ha[s] been legally determined.” Ante at 264. I disagree.
Children have a right to support from their biological parents. See Evink v Evink,
Classifications based on illegitimacy are subject to heightened scrutiny. Clark v Jeter,
In upholding the statute, the majority concludes that the statute is substantially related to the “permissible, important, and even compelling governmental interest” of providing financial support for children. Ante at 273. The majority reasons that the statute affords illegitimate children an “additional optional mechanism for obtaining support” by allowing the parties to circumvent the proof problems that may arise in paternity cases. Ante at 279. I disagree.
I recognize that the problems in proving paternity distinguish legitimate children from illegitimate children in their claims for child support. However, this justification is neither “sufficiently weighty nor substantially related to the limitation” to uphold MCL 722.713; MSA 25.493 under equal protection. Mills v Habluetzel,
[I]t is an option that has in reality worked to the detriment of many nonmarital children. It is, at best, an illusory benefit amounting to no benefit at all. It is, in reality, an additional burden. [Gerhardt v Estate of Moore,150 Wis 2d 563 , 571;441 NW2d 734 (1989).]
The possibility that children may encounter circumstances that alter their need for support does not vary between illegitimate and legitimate children. Both may encounter circumstances that give rise to a need for increased support. Yet, in the case of illegitimate children, they may be deprived of the opportunity to seek increased support on the basis of changed circumstances because their parents entered an agreement, pursuant to the statute, that precludes modification. Thus, the statute actually operates to their detriment.
In my opinion, neither proof problems nor the interests of settlement and finality outweigh the irrevocable and potentially damaging effect that a nonmodifiable settlement may have on the changing financial needs of illegitimate children. Consequently, the statute is not substantially related to the supposed interest it seeks to serve — namely, providing an additional mechanism for obtaining support for illegitimate children — and it should be determined to be violative of equal protection.
A total of five justices joined this section of Justice O’Connor’s concurring opinion. Mills, supra at 102.