[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
This chapter may be referred to as the "Tribal Paternity and
Putative Parent Act."
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
The purpose of this act is to determine the natural father of
a child. Such a determination may be sought for any reason by parties
eligible under this Act [see §§ 606 - 607], including,
but not limited to: financial support and tribal membership eligibility.
It is the intent of the Tribal Council that this Act also serve to
assist the Tribal Court in determining any rights that a putative
parent may have.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
"Blood or tissue test" means a test that demonstrates through examination
of genetic markers either that an alleged father is not the natural
father of a child or that there is a probability that an alleged father
is the natural father of a child. The genetic markers may be identified
from a person's blood or tissue sample. The blood or tissue sample
may be taken by blood drawing, buccal swab, or any other method approved
by the American Association of Blood Banks. A blood test may include,
but is not limited to, determinations of red cell antigens, red cell
isoenzymes, serum proteins, the human leukocyte antigen test, and/or
DNA probe technology.
(b)
"Child" means a person under the age of 18 years old.
(c)
"Court," unless otherwise specified, means the Tribal Court of the
Grand Traverse Band of Ottawa and Chippewa Indians.
(d)
"Filiation" means the relation of a child to his or her father.
(e)
"Guardian ad litem" means the Court-appointed legal representative
for a child. A guardian ad litem is only responsible for the child's
interests in a Court action under this Act.
(f)
"Informal hearing" means the informal pre-trial proceeding outlined
in § 612 of this Act.
(g)
"Judgment or order" or "support order" means an order of the Court
given under § 617 of this Act.
(h)
"Natural father" means the biological father of a child, except as
otherwise provided in § 605 of this Act.
(i)
"Natural mother" means the biological mother of a child.
(j)
"Paternity" means a determination that a man is the natural father
of a child.
(k)
"Putative parent" means a person who is alleged or reputed to be
the parent of a child.
(l)
"Tribal enrollment number" means the enrollment identification number
of an individual in an Indian tribe recognized by either the federal
government or the Grand Traverse Band of Ottawa and Chippewa Indians.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
A person is presumed to be the natural father of a child under any
of the following circumstances:
(1)
The person and the child's natural mother are, or were, married
to each other and the child was born either during the marriage or
within 10 months after the marriage was terminated for any reason;
(2)
Prior to the child's birth, the person and the child's natural
mother married, or attempted to marry, each other in a legally-recognized
marriage - regardless of whether or not that marriage was actually
valid;
(3)
The child's natural mother and the child's alleged father acknowledged
the paternity of the alleged father in a notarized or Court-recognized
writing;
(4)
With the alleged father's consent, he is named as the child's
father on the child's birth certificate;
(5)
The alleged father is or has been obligated to support the child
under either a voluntary written agreement or a Court Order;
(6)
Scientific evidence from a blood or tissue test shows a 95%
or higher statistical probability of paternity; or
(7)
The alleged father is considered the natural father of the child
according to the laws of the Indian reservation, state, or country
in which the child was born.
(8)
The child's natural mother and the child's alleged father acknowledge
the alleged father's paternity in a voluntary paternity acknowledgment
form issued by a state or tribal government. The Tribal Court shall
make available, accept, and file any completed forms submitted to
it. As part of this voluntary acknowledgment process, the Tribal Court
shall make information available to the parents on rights and responsibilities
associated with paternity. If another person is presumed under this
section to be the child's natural father, this voluntary acknowledgment
shall only be effective with the written consent of the presumed father,
or after that, presumption has been rebutted. A presumption of paternity
is created when the acknowledgment is filed with the department.
(b)
Any acknowledgment of paternity recognized under this Act is binding
upon the parties executing it, regardless of whether or not a party
is a minor.
(c)
Rebuttals of presumption. Except for presumptions of paternity that
are conclusive in the opinion of the Court, or irrebuttable under
§ 604(d), a presumption under this section may be rebutted
by:
(d)
A voluntary acknowledgment of paternity, as provided in either § 604(a)(3)
or 604(a)(8) of this Act, is, as a matter of tribal law, an irrebuttable
presumption of paternity for the purposes of this Act, provided that:
(e)
An irrebuttable presumption of paternity under this section has the
same force and effect as a Tribal or other Court judgment determining
paternity and may only be set aside under a showing of fraud, duress,
or material mistake of fact.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
If a woman is inseminated artificially with semen donated by a person
who is not her husband, her husband is treated by law as if he were
the natural father of the child conceived by artificial insemination
as long as he:
(b)
The law treats the donor of semen used in an artificial insemination
as if he were not the natural father of a child conceived by artificial
insemination, unless there is clear and convincing evidence of an
agreement providing otherwise between the donor and the artificially
inseminated woman.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
An action may be brought under this Act by:
(1)
A child, or his/her legal representative, legal guardian, or
custodian, who wishes to establish the paternity of his or her father;
(2)
A mother of a child, on behalf of her child;
(3)
A person alleging, or alleged, to be a child's father;
(4)
The personal representative, or parent, of an alleged father
if the alleged father has died or is a minor; or
(5)
The Grand Traverse Band of Ottawa and Chippewa Indians, through
one of its departments or agencies, in cases where the child has no
parent, legal guardian or custodian.
(b)
Judicial determination, or an irrebuttable presumption, of paternity
of a father to a child also applies to any full-blood siblings of
that child unless another provision of law provides otherwise. Siblings
do not need to be a party to a paternity suit in order for the determination
of paternity to be applicable to them.
(c)
Regardless of its terms, an agreement between an alleged or presumed
father and the mother or child does not bar an action under this Act.
This provision does not apply to a Court-approved agreement such as
provided for in § 617 of this Act.
(d)
Upon rebuttal of a presumption of paternity, paternity of a child
by another man may be determined in the same action if the other man
has been made a party to the action.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
In paternity or putative parent cases involving adults who are seeking
a paternity declaration for themselves and where the primary object
of having filiation or paternity determined is to establish or prove
Tribal descendancy and/or Indian blood quantum for Tribal membership
purposes, only the following parties may commence an action under
this Act:
(1)
An adult 18 years of age or older who is trying to enroll with
a federally-recognized Indian tribe (or any tribe that is recognized
by the Grand Traverse Band); or
(2)
Any of an adult's descendants who is 18 years of age or older
and who is trying to enroll with a federally recognized Indian tribe
(or any tribe that is recognized by the Grand Traverse Band). In an
action by a descendant, the Court is limited to a finding of whether
or not the plaintiff is a biological descendant of a Tribal member;
no filiation or paternity finding regarding persons not parties to
the action may be declared.
(A)
It is the intent of the Tribal Council that this subsection
be used simply to allow an individual to request a Court finding that
paternity or filiation existed between that individual's parent and
a Tribal member.
(B)
Such Court finding of paternity or filiation between a plaintiff's
parent and a tribal member shall not be the basis for any legal action
other than Tribal enrollment eligibility.
(b)
In paternity or putative parent cases where an adult is seeking to
establish paternity or filiation for him or herself for tribal membership
purposes, the Court shall not issue any support judgments or orders,
nor order any past expenses to be paid, unless unique circumstances
dictate such arrangements. Absent unique circumstances, cases involving
adults shall be limited only to determinations of paternity or filiation,
which the plaintiff adult may then use for enrollment purposes.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
An action under this Act may be commenced at any time by a party
listed under § 606(a) or § 607(a). However, if
the child has not been born by the time a trial has been scheduled,
the case shall be continued until after he or she has been delivered,
unless both the mother and the alleged or putative father agree otherwise.
(b)
This section does not extend the time in which a person may claim
a right of inheritance or a right to succession under any applicable
laws governing distribution, closing of a decedent's estate, or determination
of heirship.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
The Grand Traverse Band Tribal Court has exclusive jurisdiction of
any action brought under this Act. Such an action may be joined with
an action for dissolution, annulment, separate maintenance, support,
or adoption.
(b)
Personal jurisdiction over an individual under this Act may be established
in Tribal Court if:
(1)
The child for whom paternity is seeking to be established is
or may become, contingent upon paternity, an enrolled member of the
Grand Traverse Band of Ottawa and Chippewa Indians;
(2)
The child for whom paternity is seeking to be established is
or may become, contingent upon paternity, a member of any other Indian
tribe, band or community;
(3)
The natural mother of the child is a member of any Indian tribe,
band or community;
(4)
The alleged father is a member of the Grand Traverse Band;
(5)
The alleged father is a member of any tribe recognized by either
the federal government or the Grand Traverse Band and he resides on
Grand Traverse Band trust lands;
(6)
The individual submits to the jurisdiction of the Tribal Court
by consent, by entering a general appearance, or by filing a responsive
document that has the effect of waiving any contest to personal jurisdiction;
or
(7)
There is any other basis for personal jurisdiction under the
Grand Traverse Band Tribal Constitution or tribal statutes.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
The child must be made a party to the action.
(b)
A minor must be represented in Court by either the minor's general
guardian, a legal representative, or a guardian ad litem appointed
by the Court. The child's mother or father may represent the child
as guardian or otherwise unless the Court determines, upon a showing
of good cause, that such representation may not be in the best interests
of the child.
(c)
The following parties must be made parties to the action or, if not
subject to the jurisdiction of the Tribal Court, must be given notice
of the action according to Court guidelines and must be given an opportunity
to be heard:
(d)
Evidence offered by the alleged father concerning a person who is
not subject to the jurisdiction of the Grand Traverse Band Court and
who may have had sexual intercourse with the mother at or about the
probable time of conception is admissible evidence only if the alleged
father has undergone, and made available to the Court, blood or tissue
tests the results of which do not exclude the possibility of the alleged
father's paternity of the child. The burden of proof for evidence
under this subsection shall be clear and convincing.
(e)
A person who is identified and is subject to the jurisdiction of
the Court must be made a defendant in the action.
(f)
The Court may align the parties according to its discretion.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
In cases where a putative father commences an action to establish
his paternity or filiation regarding one or more children, the Court
must determine both the issue of paternity or filiation as well as
whether or not the parental rights of such putative father have been
terminated.
(b)
The provision of this Act shall apply to the Court in determining
paternity or filiation of a putative father initiating an action.
(c)
In the event that a Court determines paternity or filiation on the
part of a putative father, the Court may still find that his parental
rights to the child or children in question have been terminated according
to the provisions of the following subsections.
(d)
The Court may terminate the parental rights of any putative father
who has not established a custodial relationship with the child and
who has provided no support for the mother or child prior to the notice
of hearing if the Court finds, after examining the father's fitness
and ability to properly care for the child, "that it would not be
in the best interests of the child to grant custody" to him.
(e)
The Court may not terminate the parental rights of any putative father
who has established some kind of custodial or support relationship
prior to the notice of hearing, unless the Court finds by clear and
convincing evidence, one or more of the following:
(1)
Abandonment. The child has been abandoned under either of the
following circumstances:
(A)
A parent of a child is unidentifiable and has deserted the child
for 28 or more days and has not sought custody of the child during
that period. For purposes of this section, a parent is unidentifiable
if the parent's identity cannot be ascertained after reasonable efforts
have been made to locate and identify the parent; or
(B)
A parent of the child has abandoned the child without provision
for his support or without communication for a period of at least
six months. The failure to provide support or to communicate for a
period of at least six months shall be presumptive evidence of the
parent's intent to abandon the child.
(2)
Physical Injury or Sexual Abuse. The child or a sibling of the
child has suffered physical injury or physical or sexual abuse under
either of the following circumstances:
(A)
A parent's act caused the physical injury or physical or sexual
abuse and the Court finds that there is a reasonable likelihood that
the child will suffer from injury or abuse in the foreseeable future
if placed in the parent's home; or
(B)
A parent who had the opportunity to prevent the physical injury
or physical or sexual abuse, failed to do so and the Court finds that
there is a reasonable likelihood that the child will suffer injury
or abuse in the foreseeable future if placed in the parent's home.
(3)
Unrectified Conditions. The parent was a respondent in a proceeding
brought under this Children's Code, 12 or more months have elapsed
since the issuance of an initial disposition order, and the Court,
by clear and convincing evidence, finds either of the following:
(A)
The conditions that led to the adjudication continue to exist
and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the age of the child;
or
(B)
Other conditions exist that cause the child to be a child-in-need-of-care.
The parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent
has received notice, a hearing, and been given a reasonable opportunity
to rectify the conditions, and there is no reasonable likelihood that
the conditions will be rectified within a reasonable time considering
the age of the child.
(4)
Failure to Provide Proper Care. The parent, without regards
to intent, fails to provide proper care or custody for the child and
there is no reasonable expectation that the parent will be able to
provide proper care and custody within a reasonable time considering
the age of the child.
(5)
Conviction of Violent or Sexual Crime. A parent of the child
is convicted of a violent or criminal sexual crime against the other
parent or a sibling of the child.
(6)
Conviction of a Felony. A parent of the child is convicted of
a felony of a nature as to prove the unfitness of the parent to have
future custody of the child.
(7)
Imprisonment for More Than Two Years. The parent is imprisoned
for over two years and the parent has not provided for the child's
proper care and custody, and there is no reasonable expectation that
the parent will be able to provide proper care and custody within
a reasonable time considering the age of the child.
(8)
Parental Rights to Sibling Terminated. Parental rights to one
or more siblings of the child have been terminated due to serious
and chronic neglect or physical or sexual abuse, and prior attempts
to rehabilitate the parents have been unsuccessful.
(f)
An action brought under this section shall be brought within six
years of the date of the birth of the child. Failure to bring an action
within six years of birth shall constitute an irrefutable presumption
of abandonment of parental rights.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
The Court may, or upon request of a party shall, require the child,
mother, or alleged father to submit to blood or tissue tests.
(b)
The Court, upon reasonable request by a party or under its own discretion,
shall order that independent tests be performed by other experts qualified
as examiners of blood or tissue types.
(c)
If a party objects to the blood or tissue test results, such objection
must be filed with the Court within 30 days after service of the blood
or tissue results was made to both parties to the case.
(1)
Upon a reasonable objection being filed, the Court shall order
an additional blood or tissue test. The reasonability of any objection
shall be left to the Court's discretion.
(2)
Such additional test may be conducted by the same experts who
administered the test being disputed, unless the objecting party requests
that the additional test be conducted by different experts, provided
that different experts are available to conduct the test on a timely
basis. The definition of "timely" shall be determined by the Court,
but shall not be interpreted to mean less than the time which had
been required by the test being disputed.
(d)
The costs of any additional testing resulting from objection to the
original test shall be the responsibility of the objecting party or
parties.
(1)
If no objection is made, the test results are admissible as
evidence of paternity without the need for foundation testimony or
other proof of authenticity or accuracy.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
Upon an action being commenced regarding paternity or a putative
parent, the Court shall issue a summons to the defendant(s) in the
action. No proceedings on the action may take place before 30 days
after issuance of the summons, unless the defendant(s) agree to an
earlier date.
(b)
If the alleged father fails to answer or to appear at a scheduled
hearing or for a scheduled blood test, and upon proof that the father
was served with the summons, the Court shall send one additional summons
which includes a notice to the father informing him that if he fails
to answer or appear, he could be declared the legal father of the
child in question.
(c)
After service of the second summons, and only upon proof that the
father was served with both summonses provided for in this section,
the Court may enter an order declaring the alleged father to be the
legal father of the child.
(1)
Such an order declaring paternity, upon failure of the alleged
father to appear, may only be made by the Court upon clear and convincing
evidence.
(2)
A Court Order declaring paternity after the failure of the alleged
father to appear is not mandatory and the Court, upon good reason,
can choose not to enter an order of paternity.
(d)
The Court may not enter an order under this section if there is more
than one alleged father unless the default applies to only one of
them and all others have been excluded by the results of blood or
tissue testing.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
The judgment or order of the Court determining the existence or nonexistence
of the parent-child relationship is determinative for all purposes.
(b)
If the judgment or order of the Court conflicts with the child's
birth certificate, the Court shall order a new birth certificate to
be issued, which will take the place of the original.
(c)
The judgment or order shall contain any other provision directed
against the appropriate party to the proceeding concerning the custody
and guardianship of the child, visitation privileges with the child,
the furnishing of bond or other security for the payment of the judgment,
or any other matter in the best interest of the child.
(1)
The judgment or order must contain a provision concerning the
duty of child support. Such provision may also contain relevant past
expenses, such as childbirth, in the discretion of the Court.
(2)
The Court shall structure support judgments or orders as periodic
payments. However, if the best interests of the child or other good
reason dictates otherwise, the Court may order lump sum support judgments
or any other appropriate payment structure.
(3)
The Court may limit the father's liability for past support
of the child to any proportion or amount that the Court finds is just.
(d)
To determine a support judgment or order, as well as its length of
time, the Court shall take into consideration all relevant facts,
which include the following:
(1)
The child's age;
(2)
The child's educational needs;
(3)
The child's medical needs;
(4)
Standard of living and circumstances of the parents;
(5)
Earning ability of parents;
(6)
Financial resources and earning capabilities of the child;
(7)
Responsibility of parents for support of others, including elders,
extended family, or any one else;
(8)
Cost of day care for the child;
(9)
Any custody arrangement decided upon by the parties or ordered
by the Court; and
(10)
Any relevant tribal or traditional customs.
(e)
A support judgment or order issued under this section must comply with the provisions of both: the Michigan Child Support Formula Manual, as adopted by the Tribal Council and codified at 10 GTBC § 202; and the Uniform Reciprocal Enforcement of Support Act, codified at 10 GTBC Chapter 3 (§ 301 et seq.).
(f)
The provisions and guidelines of this section shall be adhered to
in all support judgments or orders handed down by the Court - including
those orders which are entered upon default when a party fails to
appear.
(g)
If the Court determines that a support order calculated using the
guidelines of this section is unjust or inappropriate, it shall state
its reasons for its determination. Similarly, if the parties have
agreed upon a support amount that varies from the amount which the
guidelines would suggest, they must also state the reasons behind
their amount.
(h)
If the Court does not order a parent owing a duty of support to a
child to pay anything for the child's support, it shall state its
reasons for not ordering child support and provide the parties with
a written copy of those reasons.
(i)
Upon a Court finding of paternity, or establishment of a support
judgment or order, such judgment or order must include a provision
requiring the parties to file with the Court, and update as necessary,
the following information:
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
(a)
The Court may create a lien on a tribal member's per capita account
in order to satisfy a child support debt under this Act, if such debt
has existed for at least six months.
|
CROSS-REFERENCE: See also 18 GTBC § 1607 ("Child Support
Obligations").
|
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
An agreement, understanding, or other form of settlement concerning
child support or custody between the mother, child or anyone authorized
on their behalf and the alleged or putative father shall not be legally
binding unless a Court with jurisdiction over the parties has determined
that such arrangements are sufficient for the child's support and
are in the child's best interests.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
Regardless of any other law or regulation concerning public
hearings or records, any hearing, trial or other proceeding held under
this Act shall take place in closed Court. All papers and records,
other than the final judgment, are subject to inspection only upon
consent of the Court and all parties - or in unique cases, upon the
order of the Court upon a showing of good cause.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
Any party who knowingly commences an action against a party
who is not the father of the child or children in question, or any
party who aids or abets such a false action, shall be guilty of a
misdemeanor and subject to a corresponding punishment by the Court.
[History: Tribal Paternity and Putative Parents, adopted
by Tribal Council on October 19, 1999.]
The burden of proof for all proceedings under this Act, unless
otherwise indicated, shall be that of a preponderance of evidence.
