Shifter v. Wolf
327 N.W.2d 429
Mich. Ct. App.
1982
Check Treatment
R. B. Burns, P.J.

On December 10, 1980, plaintiff filed a paternity action against defendant, alleging that hе was the father of her daughter, born on October 16, 1974. MCL 722.711 et seq.; MSA 25.491 et seq. Defendant responded by moving for an accelerated judgment, GCR 1963, 116.1(5), based on the six-year statute of limitation contained in the Michigan Paternity Act. MCL 722.714(b); MSA 25.494(b). Defendant’s motion was granted by order dated July 14, 1981. Plaintiff thereafter petitioned for rehearing, which was denied. This appeal follоwed.

Plaintiff claims that the six-year, period of limitation in the Paternity Act, MCL 722.714(b); MSA 25.494(b), ‍​‌​​​‌​​​‌​​‌​​​‌​​‌​‌​​​​‌​‌‌‌​​‌‌‌​​‌‌​​‌​‌‌​​‍violates the Equal Protection Clauses of the Michigan and United States Constitutions by *184 discriminating against illegitimate chidren in placing a time limit on their enforceable right to paternal child support when there is none for legitimate children.

Both article 1, § 2 of the Miсhigan Constitution and the Fourteenth Amendment to the United States Constitution provide that no person shall be denied the equal protection of the laws. In examining questions of alleged discrimination against illegitimate children, the United States Supreme Cоurt, in Gomez v Perez, 409 US 535, 538; 93 S Ct 872, 875; 35 L Ed 2d 56, 60 (1973), stated that a state may not "invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally”. The Court held that where a state "posits a judicially enforceable ‍​‌​​​‌​​​‌​​‌​​​‌​​‌​‌​​​​‌​‌‌‌​​‌‌‌​​‌‌​​‌​‌‌​​‍right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for dеnying such an essential right to a child” merely because he or she is illegitimate. See also Mathews v Lucas, 427 US 495; 96 S Ct 2755; 49 L Ed 2d 651 (1976).

Based on these principles, the United States Supreme Court has developed a middle-tier scrutiny test when examining alleged equal protection viоlations based on illegitimacy. Thus, this Court must determine whether the six-year statute of limitation bears a substantial relation to a permissible state interest.

We note initially thаt two panels of this Court have found the Michigan Paternity Act’s limitation period to withstand equal protection scrutiny. See McFetridge v Chiado, 116 Mich App 528; 323 NW2d 470 (1982); Daniel v Collier, 113 Mich App 74; 317 NW2d 293 (1982). The Court stated in McFetridge:

"To the extent the limitation period causes disparate *185 treatment between legitimate and illegitimate children, it is ‍​‌​​​‌​​​‌​​‌​​​‌​​‌​‌​​​​‌​‌‌‌​​‌‌‌​​‌‌​​‌​‌‌​​‍substantially related to permissible governmental interests. Lalli v Lalli, 439 US 259; 99 S Ct 518; 58 L Ed 2d 503 (1978); Daniel v Collier, 113 Mich App 74; 317 NW2d 293 (1982). The governmental interest in this case is in discouraging the litigation of stale or fraudulent paternity claims. The limitation period here, which is six years, does not produce an impеnetrable barrier effectively shielding otherwise invidious discrimination.” 116 Mich App 531.

Subsequent to the Michigan Court of Appeals decision in Daniel, supra, the United States Supreme Court released its opinion in Mills v Habluetzel, 456 US 91; 102 S Ct 1549; 71 L Ed 2d 770 (1982), holding that a Texas statute barring paternity suits brought on behalf of illegitimate children more than one yеar after birth was violative of equal protection. Applying the two relatеd requirements formulated by the Court in Mills: (1) that the period for obtaining support granted tо illegitmate children must be sufficiently long in duration to present a reasonable opportunity for thosé with an interest in such children to assert claims on their behalf, and (2) that any time limitation placed on the opportunity must be substantially related to thе ‍​‌​​​‌​​​‌​​‌​​​‌​​‌​‌​​​​‌​‌‌‌​​‌‌‌​​‌‌​​‌​‌‌​​‍state’s interest in avoiding the litigation of stale or fraudulent claims, the six-year Michigаn statute of limitation is not a denial of equal protection to illegitimate сhildren. The Legislature’s provision that actions must be commenced within six years does not produce an unfairness of constitutional magnitude. McFetridge, supra; Daniel, supra.

Plaintiff insists that, in light of modern, scientific blood testing, fraudulent claims are prevented. However, as the majority nоted in Mills, supra, 456 US 98:

*186 "Traditional blood tests do not prove paternity. They prove nonpаternity, excluding from the class of possible fathers a high percentage of the general male population. * * * Thus the fact that a certain male is not excluded by these tests does not prove that he is the child’s natural father, only that hе is a member of the limited class of possible fathers.”

This reasoning is especially applicable in Michigan, where the Paternity Act provides that blood tests mаy be used in court only to exclude paternity. MCL 722.716(d); MSA 25.496(d). Therefore, ‍​‌​​​‌​​​‌​​‌​​​‌​​‌​‌​​​​‌​‌‌‌​​‌‌‌​​‌‌​​‌​‌‌​​‍where paternity is nоt excluded by a blood test, the defendant is left to traditional forms of proof which may be very difficult to obtain more than six years after the fact.

In light of the foregoing, we hold that the six-year period of limitation in the Paternity Act, MCL 722.714(b); MSA 25.494(b), does not violate the Equal Protection Clauses of the United States Constitution, US Const, Am XIV, or the Michigan Constitution, Const 1963, art 1, § 2.

Affirmed.