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144238 - Bazzi v Macaulay

Hafez M. Bazzi,
Marc N. Drasnin
(Appeal from Ct of Appeals)
(Oakland – Moore, E.)
Anne Argiroff 
Anne Elizabeth Macaulay,


Anne Elizabeth Macaulay became pregnant while she was in an intimate relationship with Hafez M. Bazzi. According to Bazzi, Mccaulay told him and others that the child, who was born in January 2005, was fathered by Bazzi. For about three years, Bazzi maintained what he termed a “regular parenting arrangement” with the child and also contributed financial support. But in December 2008, Macaulay broke off all contact with Bazzi.
In August 2009, Bazzi sued Macaulay, asking the court, among other matters, to determine the child’s paternity and grant Bazzi joint physical and legal custody with Macaulay. In December, Macaulay moved to dismiss the lawsuit, stating that – one day after the child’s birth – she and Steven Szakaly signed an affidavit acknowledging Szakaly as the child’s father. Macaulay also attached a copy of a document purporting to be an acknowledgment of parentage by Szakaly. Macaulay contended that, given these documents acknowledging another man as the father, the trial court had to dismiss Bazzi’s paternity suit. Bazzi moved for a stay, arguing that the trial court should allow the parties to conduct discovery – including allowing Bazzi to investigate “the manner in which the Affidavit of Parentage was procured” – before ruling on Macaulay’s motion. According to Bazzi, Macaulay had repeatedly told him that Szakaly was just a “platonic” friend from college; moreover, Szakaly was involved in a committed relationship with another woman, whom he later married, when the child was conceived, Bazzi asserted. Bazzi also asked the court to appoint a guardian ad litem to protect the child’s best interests.
In a January 2010 hearing, the trial court observed that the case involved two “exceptional circumstances”: that Bazzi allegedly acted as the child’s father for three years and that the affidavit of parentage might be fraudulent. The court said these allegations should be investigated to protect the child’s rights. Accordingly, the court appointed a guardian ad litem to represent the child and conduct the investigation, and held Macaulay’s motion to dismiss in abeyance. The trial court also entered an order staying the lower court proceedings to permit Macaulay to appeal to the Court of Appeals.
The Court of Appeals granted Macaulay’s request for leave to appeal, but in a 2-1 unpublished decision, the Court of Appeals affirmed the trial court’s rulings.
The majority rejected Macaulay’s argument that Bazzi lacked standing to bring a paternity suit. The legal concept of “standing,” the majority explained, means that a party to a lawsuit “must establish that he or she has a cause of action provided by law or otherwise had standing on the basis of a special injury or right that would be detrimentally affected in a manner different from the citizenry at large.” The Legislature can also define or limit a person’s standing by statute – “statutory standing,” the majority noted. For example, under the state’s Paternity Act, MCL 722.711 et seq, a man cannot sue to determine the paternity of a child born while the mother was married to another man, unless court has already determined that the child was not the issue of the marriage, the majority stated. “In addition to this limitation, the Legislature has provided that a putative father cannot bring a paternity action where the paternity of the child has already been legally established,” the majority noted, citing MCL 722.714(2).
But in this case, Macaulay was not married when the child was born, the majority observed. Moreover, the allegations Bazzi raised, including his belief that Macaulay had not taken any action to determine the child’s paternity, would, if true, “establish his standing to sue under the paternity act,” the majority said. The majority added, “[T]he mere filing of Macaulay’s motion to dismiss for lack of standing did not establish that Bazzi actually lacked standing … Bazzi’s standing remains and the trial court retains jurisdiction over Bazzi’s suit.”
As to the affidavit of parentage, the majority said that the document “appears valid on its face, and would normally be sufficient to sustain a motion for summary disposition,” but “it is possible that further discovery will reveal evidence tending to establish that the affidavit is not valid under the acknowledgement of parentage act.” The majority noted that Macaulay brought her motion before the parties had conducted any discovery, and that Bazzi “was apparently completely blind-sided by Macaulay’s claim that Szakaly was the child’s real father. Under these circumstances, we cannot conclude that the trial court’s decision to postpone consideration of Macaulay’s motion for summary disposition pending further limited discovery fell outside the range of reasonable and principled outcomes.”
The majority also upheld the trial court’s order appointing a guardian ad litem. In paternity cases, “trial courts may appoint a guardian ad litem to make recommendations and represent the best interests of the child,” the majority noted. Among other considerations, the majority said, “there is the distinct possibility that Macaulay has not only refused Bazzi’s efforts to provide for the child, but also has not sought support from Szakaly.” Because a child’s parent has no authority to waive a child’s right to support, the trial court could reasonably conclude, based on the allegations, that Macaulay was not acting in the best interests of her child and that a neutral third party was needed to represent the child’s interests, the majority stated. In addition, “the acknowledgement of parentage act clearly provides that the child does have the right to challenge the validity of an affidavit of parentage on the basis of—among other things—fraud, misrepresentation, or misconduct…. And nothing within the acknowledgment of parentage act prevents a trial court from appointing a next friend to pursue such a claim on behalf of a minor child as part of a paternity suit.”
The dissenting judge said that the trial court erred by not granting Macaulay’s motion to dismiss once she presented the signed affidavit of parentage. “Plaintiff did not have standing under MCL 722.714 to bring this action to determine paternity,” the dissent wrote. “Any decision to the contrary violates the clear language of MCL 722.714(2): ‘[a]n action to determine paternity shall not be brought under this act if the child’s father acknowledges paternity under the acknowledgment of parentage act . . . .’ (emphasis added). The word ‘shall’ is mandatory; it expresses a directive, not an option.”
Under the acknowledgment of parentage act, the mother, the man who signed the acknowledgment, the prosecutor, and the child – but no one else – have standing to challenge the acknowledgement of parentage, the dissent reasoned.
“Here, the majority would permit the self-proclaimed biological father to circumvent the limitation in MCL 722.1011(1) on who may challenge an acknowledgment of parentage by permitting a paternity action to continue long enough for a GAL appointed in the paternity action to conduct discovery and file an action under the Acknowledgment of Parentage Act challenging the validity of the acknowledgment of parentage,” the dissent said. “The reason the court may appoint a GAL for a child under the Paternity Act is to protect the child’s interests in the paternity action, not to facilitate a ‘fishing expedition’ with an eye to a possible suit under another statute, such as the Acknowledgment of Parentage Act. If the alleged biological father believes a fraud has been committed, he is free to urge the prosecuting attorney to challenge the acknowledgment of paternity.”
Macaulay appealed. In a May 4, 2012 order, the Supreme Court ordered the case to be scheduled for oral argument on whether to grant Macaulay’s application or take other action. The Court directed the parties to “address whether, for the reasons stated in the Court of Appeals dissenting opinion or otherwise, the Oakland Circuit Court was obligated to grant summary disposition in favor of the defendant.”