Paternity settlements ruled unconstitutional by Michigan court.

In many parts of the country, a man facing a paternity suit can settle the case once and for all by paying his former sexual partner a lump sum to support their child.

That time has passed in Michigan, where an appellate court ruling has changed the way these cases are settled and could lead to the reopening of similar settlement agreements in other states.

At issue is the disparate treatment of children born in marital relationships and of those born out of wedlock.

The Michigan Court of Appeals, ruling in a case involving Detroit Pistons basketball player Isiah Thomas and his out-of-wedlock son, deemed unconstitutional a statute that permits nonmodifiable paternity settlements. (Dones P. Thomas, No. 161042, 1995 WL 315656 (Mich. Ct. App. May 19,1995).) The court found that the state's paternity law violated the Equal Protection Clause of the Fourteenth Amendment.

Many states allow nonmodifiable paternity settlements but bar them in child support agreements where the child was born to a married couple. The legislatures reasoned that child support agreements should be modified relative to the paying party's changing financial circumstances.

"The [Michigan] legislature has determined that the need to modify child support awards in divorce proceedings outweighs the need for settlement and finality," the three-judge panel wrote in striking down the statute. "We fail to see how the need differs with respect to illegitimate children."

Childrens' advocates say the panel's ruling promotes fairness for youngsters regardless of the adults' marital status when the children were born.

"I think it's a terrific decision," said Anne Argiroff, who helped draft a friend-of-the-court brief on behalf of the Michigan State Bar's Family Law Section. "It's definitely something that has needed to be addressed. Nonmarital children have the same rights to appropriate child support as marital children."

The Michigan ruling gives plaintiffs' attorneys in other states backing for the disparate treatment argument if their clients agreed to a nonmodifiable settlement in a paternity case.

"While the law has always protected children born during marriage, unfortunately three still are legal and social distinctions which continue to stigmatize the nonmarital child and scar his or her development," the state bar's amicus brief said.

"Upholding the settlement provision [of Michigan's Paternity Act would] once again deprive illegitimate children of something which legitimate children have always had - the right to seek support from both of their parents during their minority."

The court said that historically it has been hard to determine paternity with any degree of certainty. Advances in genetic tests, however, have changed the status quo.

"Paternity actions have evolved from the parading of witnesses in a courtroom to produce what was ultimately a somewhat speculative answer on the question of paternity to the conducting of a blood test resulting in a highly accurate determination of paternity," the Michigan court wrote.

"Not only has the need to settle a Paternity Act proceeding diminished because the danger of inaccurate determinations of paternity or nonpaternity is now minimized, more importantly ... the need for settlement in a paternity action is now the same as the need for settlement of a paternity question in a divorce proceeding."

The U.S. Supreme Court took up a similar equal protection issue in a paternity case nearly 10 years ago. (Clark v. Jeter, 108 S. Ct. 1910 (1987).) The Court invalidated a law that set a six-year statute of limitations for paternity suits involving children whose parents never married but set no deadline for marital children.