Case Update (19 Feb 2025): Cavalcanti Lyra v. King; petitioner has burden to establish parentage as a matter of law
The parties are, presumably, the parents of one child, born in Brazil in late 2020. The child resides with Plaintiff Mother in Brazil. The child’s “father” resides in Michigan. This dispute revolves around establishing the Father’s paternity and then establishing child support. Various proceedings were filed in both Brazil and in Michigan. In August 2021, the Mother filed an application to establish a child support order with the Brazilian Central Authority under the Hague Child Support Convention. The Mother noted that paternity was “established or presumed” and attached a Brazilian birth certificate naming the Father. This application was transmitted to the applicable state authority in Michigan to seek support. The Father then responded to that Michigan suit, denying paternity and asking that paternity be established. He separately filed his own paternity action in the Michigan trial court. In that action, he alleged he was the Father. In the first Michigan suit, initiated by the Mother with her application in Brazil under the Convention, the parties argued over paternity. The Mother argued that Brazilian law established paternity because the Father’s name was on the child’s birth certificate. The Father disagreed. The Mother also argued that the Father briefly visited Brazil and signed an acknowledgment of paternity at the U.S. Consulate to obtain a passport for the child. Around this time, apparently the Father also sued the Mother in Brazil for return of the child under the Hague Abduction Convention.
The Michigan trial court concluded that the Defendant Father was the child’s Father under Brazilian law, and set an amount of child support. The Father “submitted a delayed application … seeking leave to appeal, which this Court granted.” The focus of the appeal appears to be the determination of Father’s parentage and whether it was, in fact, determined under the law of Brazil.
On appeal, the Michigan Court of Appeals stated “that the record before the trial court does not demonstrate that Brazil has determined defendant’s parentage of the child.” Establishing the Father’s parentage is a pre-requisite to finding that he has a duty to support the child at issue. Unless he has a duty to pay child support, a child support order cannot be established.
On appeal, the Court of Appeals noted that “the trial court accepted plaintiff’s [mother’s] contention that under Brazil law, any man designated as the father on a child’s birth certificate is thereby determined by law to be the father of that child…. The trial court erred, however, because it accepted plaintiff’s contention that parentage had been established under Brazil law without proof that this had in fact occurred.” Even if the father had, in fact, made past assertions that he was the child’s father and signed an affidavit before the U.S. consulate stating he was the child’s father, “these assertions, even if true, do not establish whether the parentage of the child ‘has been previously determined by or according to law’ under” the Uniform Interstate Family Support Act. The fact that the father filed his own suit before the Michigan trial court asserting he was the father does not determine parentage as a matter of law, and the courts are not bound by parties’ stipulations as to the law. Further, this father had consistently disputed whether paternity had been established before the trial court. The order of support is vacated, and the proceedings remanded.
