Girard v. Wagenmaker

470 N.W.2d 372, 437 Mich. 231

• Court: Michigan Supreme Court
• Decided: May 7, 1991
• Docket: 85662, (Calendar No. 4)
• Status: Published

Opinions

Brickley, J.

The Court granted leave in this case to resolve two issues.¹ The first issue is whether the plaintiff, a putative father, has standing to bring an action under the Paternity Act as it existed in 1985, MCL 722.711-722.730; MSA 25.491-25.510, to determine the paternity of a child born while the mother was legally married to another man.² A second and similar issue to be decided if we find the Paternity Act unavailing to the plaintiff is whether a putative father has standing to bring the same action under the Child Custody Act, MCL 722.21-722.28; MSA 25.312(1)-25.312(8).³

On the basis of our interpretation of the Paternity Act, we hold that the Legislature did not express an intention to grant a putative father standing to establish the paternity of a child born while the mother was legally married to another man without a prior determination that the mother’s husband is not the father. We also conclude that a putative father does not have standing to make a similar claim under the Child Custody Act.

I. FACTS

This dispute began on May 10, 1985, when Larry Girard filed a complaint against Judy Wagenmaker, claiming that he was the father of a child conceived and born while Wagenmaker was married to her husband, Harvey Wagenmaker. The complaint by Girard acknowledged that Harvey Wagenmaker was the husband of Judy, but alleged that the child was not a child of the marriage. The complaint requested a determination of the child’s paternity, an order of filiation if Girard was found to be the biological father of the child, visitation, and a determination of support.

Subsequently, on June 19, 1985, Harvey Wagenmaker filed a petition for intervention, stating that the child was conceived and born during his marriage with Wagenmaker, and that he continuously accepted and. supported the child as his own. On the same day, Judy Wagenmaker filed a motion for summary disposition, alleging, as in this Court, that Girard did not establish that the child was “born out of wedlock,” MCL 722.711(a); MSA 25.491(a). She argued that a prior determination by a circuit court of the issue whether a child was born out of wedlock was necessary to contest paternity, and that no such determination had been previously obtained.

In a written opinion, R. Max Daniels, presiding judge of the Muskegon Circuit Court, ruled that Girard did not have standing to bring a paternity action in the circuit court. Judge Daniels stated that most paternity claims generally arise when a divorce occurs, and, because this aspect was missing from the present case, Girard did not have standing under the Paternity Act. Judge Daniels declared that the words "which the court has determined” under the definition of child born out of wedlock, MCL 722.711(a); MSA 25.491(a), mean a prior determination that the child was born out of wedlock must be obtained before bringing a paternity action. Judge Daniels concluded that a "self-proclaimed father” did not have standing to seek a determination under the Paternity Act. In a supplemental opinion Judge Daniels also held that Girard had no standing under the Child Custody Act to ask for "visitation, custody or determination of paternity . . . .”⁴

On appeal, the Court of Appeals overturned the trial court’s decision. 173 Mich App 735; 434 NW2d 227 (1988). In holding that a man claiming himself to be the biological father of a child had standing even if the mother is married to another man at the time of conception and birth, the Court of Appeals stated that a putative father does not "need a judicial determination that the child is a child born out of wedlock at the time that [the putative father] filed the complaint.” Id. at 741. The Court of Appeals based its decision on a belief that the language "which the court has determined” in MCL 722.711(a); MSA 25.491(a) did not limit a putative father’s standing. The Court found that the putative father’s complaint is sufficient if "it alleges facts sufficient to show that the child is not the issue of the marriage and that plaintiff is the biological father of the child.” Id. at 740. Therefore Girard had standing under the Paternity Act to seek a determination regarding the paternity of the child allegedly born out of wedlock. Id. at 741.

This Court granted leave to appeal to determine whether a putative father can obtain standing under either the Paternity Act or the Child Custody Act to dispute the paternity of a child born while the natural mother is married to another man. 435 Mich 858 (1990).

II. THE PATERNITY ACT

A

Although this Court has previously reviewed the Paternity Act, this case presents a novel question. At issue is the following statutory language:

The father or putative father of a child born out of wedlock may fíle a complaint in the circuit court in the county in which the child or mother resides or is found, praying for the entry of the order of filiation as provided for in section 7. [MCL 722.714(6); MSA 25.494(6). Emphasis added.]

"Child born out of wedlock” means a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child which the court has determined to be a child bom during a marriage but not the issue of that marriage. [MCL 722.711(a); MSA 25.491(a). Emphasis added.]

To determine whether Girard can bring an action under the Paternity Act, the Court must interpret the terms "which the court has determined” within the definition of a "[c]hild born out of wedlock,” MCL 722.711(a); MSA 25.491(a).

The Court is bound by a number of rules of statutory construction when it interprets statutes. Although the proper construction of any statute is for the courts, Lakehead Pipe Line Co v Dehn, 340 Mich 25, 35; 64 NW2d 903 (1954); Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948), this Court must still give the statute a valid and reasonable construction that will reconcile any inconsistencies and give effect to all its parts. Aikins v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972); see also In re Petition of State Hwy Comm, 383 Mich 709, 714-715; 178 NW2d 923 (1970) (citing Evans Products Co v State Bd of Escheats, 307 Mich 506; 12 NW2d 422 [1943]). While the words of a statute must be given their ordinary construction according to their common and approved usage, MCL 8.3a; MSA 2.212(1);⁵ State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455; 254 NW2d 810 (1979), the Court can also refer to the legislative intent in passing the statute to find an appropriate interpretation. Crawford v School Dist No 6, 342 Mich 564, 568; 70 NW2d 789 (1955) (citing In re School Dist No 6, Paris & Wyoming Twps, 284 Mich 132, 143-144; 278 NW 792 [1938]). This legislative intent can be ascertained from examining the language of the act, the subject matter under consideration, the scope and purpose of the act, and other preceding statutes. Id.

In 1820, the Legislature enacted the first act similar to the Paternity Act. May 8, 1820 (1 Laws of the Territory of Michigan 640 [1871]). This act, entitled "An act for the support and maintenance of Illegitimate Children,” 1 Laws of the Territory of Michigan 643 (1871), underwent subsequent changes in 1827 and 1838. See 2 Laws of the Territory of Michigan 581 (1874); 1838 RS, part 1, tit IX, ch 6. In 1846 the act was reentitled the Bastardy Act and further amendments followed over the years. 1846 RS, tit IX, ch 42; 1857 CL, tit XV, ch 43; 1871 CL 1973; 1882 How Anno Stat 2004; 1897 CL 5901; 1915 CL 7753; 1929 CL 12910.

In 1941, the Bastardy Act of 1846 was amended to allow the father of an illegitimate child to bring a claim in the circuit court to prevent the issuance of a warrant of prosecution against the alleged father:

The father of an illegitimate child may file a bill of complaint in the circuit court .... [T]he pendency of a bill of complaint filed therefor shall be a bar to the issuance of a warrant or prosecution thereof upon complaint as authorized by this chapter, in case such complaint is made after the filing of such bill of complaint. [1941 PA 316, ch 42, § 12. Emphasis added.]

In 1956, the Paternity Act underwent substantial revisions. 1956 PA 205, MCL 722.711-722.730; MSA 25.491-25.510. With these revisions the Legislature attempted to rid the statute of its criminal aspects. See Bowerman v MacDonald, 431 Mich 1, 5; 427 NW2d 477 (1988). Under the 1956 revisions, the Paternity Act allowed a father or putative father to file a complaint in the circuit court. 1956 , MCL 722.714(f); MSA 25.494(f). However, for the complaint to be proper, the Legislature required the plaintiff to be the father of a "child so born out of wedlock under this act . . . .” Id. The history of the Paternity Act to this point not only shows the Legislature’s concern with the support of illegitimate children, Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), but also indicates that the Legislature, even while broadening the rights of putative fathers to file suit under the act, continues to include limitations on the accessibility to the Paternity Act.

In 1980, the Legislature again amended the Paternity Act, expanding the definition of a child born out of wedlock to include "a child which the court has determined to be a child born during a marriage but not the issue of that marriage.” 1980 PA 54, MCL 722.711(a); MSA 25.491(a). The 1980 amendment originated in HB 4389 in the House of Representatives. House Legislative Analysis, HB 4389, April 11, 1979.

This amendment came about for two reasons. First, this Court decided Serafín v Serafín, 401 Mich 629; 258 NW2d 461 (1977), which abrogated Lord Mansfield’s Rule and stated that the presumption of legitimacy can be rebutted by clear and convincing evidence. The Legislature believed that Serafín would leave natural mothers without any avenue to force a biological father to undertake parental responsibilities and leave "a gap in the law by which some children are deprived of access to support from their fathers . . . .” House Legislative Analysis, HB 4389, April 11, 1979.

Second, in July of 1979, the Court of Appeals decided Smith v Robbins, 91 Mich App 284, 288-289; 283 NW2d 725 (1979) (Bashara, J.), in which it was stated:

If our paternity statute is interpreted as creating a distinction between support provided for an illegitimate child of an unwed mother and the illegitimate child of a married mother, a clearly irrational classification exists and the statute will be rendered unconstitutional.

The Court of Appeals avoided the equal protection problem by defining "unmarried” to include "not lawfully married to the father of the child . . . .” Id. at 291. The Legislature obviously was concerned about such an unconstitutional distinction. Syrkowski v Appleyard, 420 Mich 367, 374; 362 NW2d 211 (1985).

The last amendment of the Paternity Act occurred in 1986, after the present suit was initiated. The 1986 amendment added the term "or conceived” to the definition of a child born out of wedlock. 1986 PA 107, MCL 722.711(a); MSA 25.491(a).

With this background in mind, we turn to the issues presented in this case.

B

MCL 722.714(f); MSA 25.494(f), as it existed in 1985, stated that "[t]he father or putative father of a child so born out of wedlock may file the complaint” in the circuit court. This right was defined in the section that set forth the general procedural requirements under the Paternity Act. MCL 722.714; MSA 25.494. Because a man can only file a complaint to determine paternity if he is the father or putative father of a child "born out of wedlock,” we focus our attention on the definition of that term.

The Paternity Act defined a child born out of wedlock as "a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child which the court has determined to be a child born during a marriage but not the issue of that marriage.” MCL 722.711(a); MSA 25.491(a). (Emphasis added.) Girard obviously cannot meet the requirements of the first clause. The facts of this case clearly indicate that Wagenmaker was married to Harvey Wagenmaker when the child was born.

To meet the requirements of the second clause under the statutory definition, there must exist a child born out of wedlock — a child which the court has determined to be a child born during, but not the issue of, the natural mother’s marriage. Using the common and approved usage of the terms in the statute, Aikins, supra, we find that a literal construction of this clause, coupled with the filing requirement clause, requires a prior court determination that a child is born out of wedlock.

In the second clause of the born out of wedlock definition, the Legislature used the term "which the court has determined” to define one of the necessary requirements to find that a child is born out of wedlock. "[H]as determined” is the present perfect tense of the verb "determine.” The present perfect tense generally "indicates action that was started in the past and has recently been completed or is continuing up to the present time,” Sabin, ed., The Gregg Reference Manual (New York: McGraw-Hill, 6th ed, 1985), ch 10, p 192, or shows "that a current action is logically subsequent to a previous recent action.” Ray & Rams-field, Legal Writing: Getting It Right and Getting It Written (St Paul: West Publishing Co, 1987), p 229. For a putative father to be able to file a proper complaint in a circuit court, MCL 722.711(a); MSA 25.491(a), a circuit court must have made a determination that the child was not the issue of the marriage at the time of ñling the complaint. The facts in this case indicate Girard cannot meet this requirement. No previous action was ever undertaken to determine the child’s paternity. Furthermore, no ongoing actions existed to determine the child’s paternity when Girard filed his paternity claim against Wagenmaker. Therefore, Girard cannot meet the requirements under either the first or the second clause in the definition of a child born out of wedlock. Because MCL 722.714(f); MSA 25.494(f) requires that Girard be the father of a child born out of wedlock, he cannot file a proper complaint and has no standing to bring a claim under the Paternity Act.

Not only is this outcome required by the plain language of the Paternity Act, but it is the only reasonable construction of the Paternity Act which will give effect to all its parts as a whole. Adopting Girard’s view of the meaning of the statute would have us read "has determined” to mean "may determine.” Or, more precisely, had the Legislature intended the standing provision to operate as the plaintiff suggests, it would have omitted from the definition of "out of wedlock” the words "a child which the court has determined to be.”

Therefore, even if we were willing to overlook such an alteration of the plain meaning of the words of this section, we would then have to explain why the Legislature would use those words before the second prong of the out of wedlock definition, but not the first. Would it mean that where the allegation is that the child was "begotten and born to [an unwed] woman” no determination has to be made to that effect in the course of the paternity proceedings because the clause is not preceded by the words "which the court has determined”? To accept the plaintiff’s reading, we either have to answer that question in the affirmative or declare the words "has determined” preceding the second prong of the out of wedlock definition a nullity.

Finally, because we are dealing with standing, the question is what the plaintiff must allege at the time of filing. If the plaintiff sought access to the court under the first clause of the out-of-wedlock definition, he would only need to allege that the mother was not married at the time of birth or conception. He would not have to allege that a circuit court "has determined” such facts. But when the plaintiff sought access under the second clause, he must, by the very wording of that clause, allege that a "court has determined” that the child was not the issue of the marriage. Again, to suggest otherwise would be to declare those words a nullity. The Court must give meaning to all the words in the statute, Aikins, supra, because " 'it will not be presumed that the legislature intended to do a useless thing . . . .’” Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782 (1959). Giving proper weight to each and every clause, we must reach the conclusion that a prior determination of paternity is required under the second clause in the definition of a child born out of wedlock.

This literal interpretation of the 1980 amendment, "which the court has determined to be a child born during a marriage but not the issue of that marriage,” is buttressed by the legislative analysis when the amendment was adopted. While recent developments in the Paternity Act certainly indicate an intent to allow the biological father access to a circuit court, this trend is not the principal focus of the Legislature’s 1980 amendments. The legislative history and analyses indicate the Legislature’s concern that the natural mother would not be protected in the case of divorce and support proceedings. The Legislature wanted to allow the natural mother to obtain support from the biological father of a child born out of wedlock where support from the legal father of the child was jeopardized.

One analysis of the Paternity Act stated:

In divorce and support cases, the court now may admit the husband’s testimony disputing paternity, and in the light of clear and convincing evidence, may release the husband from parental and child support responsibilities. The mother of the child at this point has no avenue in the courts to force the biological father of the child to assume parental responsibilities, because the Paternity Act by which such determinations are made applies only to a child whose mother was unmarried from the child’s conception to its birth[,] ... a situation which could be corrected by amending the Paternity Act to include such children. [House Legislative Analysis, HB 4389, April 11, 1979. Emphasis added.]

In fact, one of the arguments for the amendment to include children born during a marriage, but not the issue of a marriage, stated:

If a man who was married to a woman at the time of her child’s birth convinces the court that he is not the father of the child, the law now provides no procedure to legally identify the father and require him to provide support for the child. Thus, the court may decide who is not the father of a child, but may not then entertain the question of who is. The bill would correct this. [Id. Emphasis added.]

Finally, the House Legislative Analysis of HB 4389 also states:

The bill would amend the Paternity Act to include in the definition of a "child born out of wedlock” a child whose mother was married at the time of the birth but whose father, in the determination of the circuit court, was not the mother’s husband. [Emphasis added.]

These legislative analyses of the 1980 amendments are clearly concerned with what actions a mother can take, not the rights of a father or putative father to claim paternity. The analyses also indicate that the Legislature, in enacting the 1980 amendments, was contemplating situations where a court in a prior divorce or support proceeding determined that the legal husband of the mother was not the biological father of the child. This concern supports our conclusion that a prior determination of paternity must have occurred before the putative father, or the mother, can file a complaint to determine who is the biological father and determine the putative father’s support obligations.

We also think the literal reading of the "has determined” language to require a prior determination that the child is not the issue of a marriage comports with the traditional preference for respecting the presumed legitimacy of a child born during a marriage. Serafin, supra at 636. A child born to a mother who is unmarried does not enjoy such a presumption, and, therefore, it makes sense that the Legislature would require a prior determination in the second prong of the born out of wedlock definition, but not in the first.

While one could argue that the Legislature was also concerned with the ability of the circuit court where the paternity action was pending to decide who was the father of the alleged child born out of wedlock, House Legislative Analysis, HB 4389, April 11, 1979, that argument is not persuasive. The language regarding the circuit court actually comports with the Legislature’s overall concern about the natural mother’s rights in divorce or support actions where the husband was determined not to be the biological father of the child. Because allowing a putative father standing in a paternity action does not promote this concern, our only possible conclusion can be that the present circuit court cannot decide paternity without meeting the prior determination requirement. Therefore, not only does the language of the Paternity Act itself require a holding that a putative father does not have standing in this situation, but the legislative history and analyses argue for the same result.

Even though this Court has previously interpreted the Paternity Act, those interpretations do not require a different result. Most of the prior cases review the purpose of the Paternity Act and are not dispositive. See Artibee, supra; Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961). Bowerman, supra, is also not dispositive.

In Syrkowski, supra, we dealt with a situation where a claim under the Paternity Act was brought by a third party. In a per curiam decision, we stated:

The circuit court has subject-matter jurisdiction over an action to identify the father of a child born out of wedlock. Any other conclusion requires an impossibly restrictive and unnecessary interpretation of the statutory language.

The plaintiff seeks only a paternity act determination that he is the biological father of Teresa Syrkowski. The act was created as a procedural vehicle for determining the paternity of children "born out of wedlock,” and enforcing the resulting support obligation. The plaintiff is requesting the Court to determine the status of the child and his biological paternity. The act allows fathers to seek and receive such determinations. We hold that the circuit court does have subject-matter jurisdiction. [Id. at 375.]

Our holding here does not necessarily conflict with our narrow holding in Syrkowski that a circuit court has subject matter jurisdiction over an action brought by a putative father in a surrogate parenting context. Syrkowski dealt with the subject-matter jurisdiction of a circuit court under § 4 of the Paternity Act. See former MCL 722.714(c); MSA 25.494(c). In this case, however, we are concerned with the standing of individual plaintiffs and the interpretation of the "has determined” clause in §1, MCL 722.711(a); MSA 25.491(a). Syrkowski also assumed the out-of-wedlock definition was met.

Finally, because a certificate of nonconsent was filed in Syrkowski, the out-of-wedlock issue, while not articulated in our opinion in that case, may well have been determined on the peculiar circumstances of the interaction of the Paternity Act and MCL 333.2824(6); MSA 14.15(2824)(6).⁶ Our holding today does not change this analysis and reviews different issues than those decided in Syrkowski.

c

The dissent dismisses our analysis as unsupported by whatever "scant legislative history exists,” post, p 257, and then, without support from the text or the legislative background of the Paternity Act, attempts to justify the standing of the putative father of a presumptively legitimate child of another man married to the child’s mother.

The legislative history is indeed scant because the purpose of the paternity legislation during that 182-year history was clear and obvious. The earliest act was entitled "An act for the maintenance and support of illegitimate children.” February 4, 1809, 4 Laws of the Territory of Michigan, p 46. Subsequent enactments carried nearly identical titles until its more ignominious appellation of the "Bastardy Act” in 1846. 1846 RS, tit IX, ch 42.

The only recognition of independent standing for the putative father, and then only when the child is born to a woman not married from the conception to the date of birth, was the 1941 enactment whereby a putative father was given the standing and opportunity, not to provide the putative father a "legal forum or procedure to claim his alleged paternal status,” post, p 262, but to pray for the entry of a "decree providing for the support of such child” unless a proceeding for an order to that effect was already commenced. 1941 PA 316, § 12. The acknowledged purpose of this provision, seen by the dissent as designed to satisfy the paternal instincts of the father, was to give the putative father an opportunity to forestall a warrant upon the action of the mother of the illegitimate child. This legislative intent becomes very clear when it is recognized that the 1941 enactments also added a specific statement to that effect.

The dissent also attacks our interpretation of the 1980 amendment for denying the putative father standing — not the standing he acquired by virtue of the 1941 amendment, but to contest his paternity over a child born within a marriage to another man — "precisely when he needs [it] the most” (post, p 262) (emphasis supplied); and for visiting "hardship and injustice” (id.) on the plaintiff. Only after a construction of the 1980 out-of-wedlock amendment to satisfy this solicitude for the plight of the plaintiff does the dissent state:

I frankly do not understand why the Paternity Act’s concededly predominant purpose of facilitating support for children born out of wedlock should be thought to militate affirmatively against the standing of a putative father in a case like the one before us. The unfortunate fact that, in our society, the act’s primary utility lies in compelling unwilling and recalcitrant fathers to meet their support obligations is no reason to deny standing to those fathers who desire to acknowledge their paternal responsibilities. [Post, p 269. Emphasis in original.]

We do not denigrate the dissent’s genuine and thoughtful concerns over the moral dilemma between the paternal needs of the biological father and those of the presumptively legitimate child. We only find that the Legislature has made its choice and the answer to the dissent’s concerns will have to come from that body.

In the meantime, the dissent has posed our dilemma as the interpreters of legislative intent better and more succinctly than we have in the entirety of this opinion by stating: "It is surely a bit late to talk of preserving the 'sanctity’ of the marital family by the time a situation like the one alleged in this case has arisen.” Post, p 271. We could not agree more. The Legislature has for 182 years now chosen to protect this "sanctity,” and that choice prompts its preference to avoid a challenge to a presumed legitimate birth until a prior determination rebuts legitimacy and threatens the child’s support by exposing the fact that the presumed father is not the biological father. As described in our legislative analysis above, this situation is precisely what concerned the Legislature in their 1980 amendment and precisely what they said in the language that was adopted.

III. THE CHILD CUSTODY ACT

The remaining question, whether a putative father has standing under the Child Custody Act, MCL 722.21-722.28; MSA 25.312(1)-25.312(8), to bring an action to determine the paternity of a child born while the mother was married to another man, can also be resolved now that we have held that the plaintiff does not have standing under the Paternity Act.

We note that a proper action to determine paternity should be brought under and governed by the provisions of the Paternity Act. See Pizana v Jones, 127 Mich App 123, 127; 339 NW2d 1 (1983). Once the trial court determined that Girard, a putative father of a child born to a woman married to another man, did not have standing to contest paternity under the Paternity Act, Girard clearly could not obtain a determination that he was the natural or biological father of the child under the Child Custody Act. Because Girard could not obtain a determination that he was a parent of Wagenmaker’s child, Girard must be considered a nonparent under the Child Custody Act and his child custody claim is barred. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984).⁷_

IV. CONCLUSION

Neither the statutory or the legislative analyses of the Paternity Act nor the analyses of the Child Custody Act support the position of Girard. Neither the Paternity Act nor the Child Custody Act supports the standing of a putative father to bring an action to determine the paternity of a child born while the mother was married to another man. Therefore, we conclude that Girard has no standing to bring an action to determine the paternity of Judy and Harvey Wagenmaker’s child. We reverse the decision of the Court of Appeals and reinstate the summary dismissals granted by the Muskegon Circuit Court.

Boyle and Griffin, JJ., concurred with Brickley, J.

1 The Court originally granted leave solely to review the question presented under the Paternity Act, MCL 722.711-722.730; MSA 25.491-25.510. 432 Mich 921 (1989). However, the Court subsequently granted unlimited review, but specified the two present issues. 435 Mich 858 (1990).

2 The Court of Appeals analyzed this case under the Paternity Act’s 1986 amendment which added the words "or conceived” to the definition of a child born out of wedlock. Because this suit was commenced in 1985, the plaintiff’s claims would generally be more appropriately analyzed under the act as it existed in 1985. However, under the 1986 amendment the result would not be different because the child was conceived and born while Wagenmaker was married to her current husband.

3 Although Girard referred to Michael H v Gerald D, 491 US 110; 109 S Ct 2333; 105 L Ed 2d 91 (1989), to support a policy argument in favor of standing, he did not raise any constitutional attack against the Paternity Act in his pleadings, his briefs, or his arguments at each level of appeal. In addition, neither the trial court nor the Court of Appeals reviewed the constitutionality of denying standing to a putative father under the Paternity Act. Because we also are limited to the issues raised on appeal, MCR 7.302(F)(4)(a), we do not review any constitutional questions. Furthermore, even if we were to review the constitutionality of the Paternity Act, we note that Girard admitted that the Paternity Act is not as preclusive as the California statute that was upheld by the United States Supreme Court in Michael H.

4 After the trial court dismissed his Paternity Act claim, Girard moved to amend his pleadings to add a claim under the Child Custody Act.

5 This statute provides:

All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

6 "A child born to a married woman as a result of artificial insemination, with consent of her husband, is considered to be the legitimate child of the husband and wife.” (Emphasis added.) Arguably a statutory nonconsent form is the equivalent of a prior rebuttal of a child’s legitimacy.

7 In Ruppel, we stated:

[W]here a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents’ objection.

Although the Court of Appeals in In re Paternity of Flynn, 130 Mich App 740, 759-760; 344 NW2d 352 (1983), determined that a putative father could bring an action under the Child Custody Act to determine paternity, that decision is not persuasive. First, the Flynn panel relied on the decision in Winsett v Donaldson, 69 Mich App 36; 244 NW2d 355 (1976), a case which is brought into question by legislative changes in the Paternity Act and our decision in Ruppel. See Pizana, supra at 127. Second, Flynn was decided one year prior to the decision in Ruppel.